DPP v Higgins

1. Mr Jaiden Higgins (the offender) is before me to be sentenced for a significant number of offences. The progress of the offender’s matters to this final point of sentencing has taken some extended time for two main reasons. First, the charges proceeded at different stages and at different times through the court system. Second, there were a number of attempts at drug rehabilitation on the part of the offender in the interim through 1 2024. Additionally, as a result of both these factors, the sentencing of this offender is not without some significant complexity.

2. In this judgment, I will refer to the series of offences in accordance with the month of commission by the offender. This is for clarity and is consistent with the approach adopted by counsel. The various series of offences are as follows.

3. On 2 February 2023, the offender pleaded guilty to the following offences committed in 2 June 2021 (June 2021 offending) : (a) Riding a motor vehicle without consent (CC2022/2682), contrary to s 318(2) of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty for this offence is 5 years’ imprisonment, 500 penalty units, or both. (b) Attempted robbery (CC2022/10336), contrary to s 309 of the Criminal Code by virtue of s 44. The maximum penalty for this offence is 14 years’ imprisonment, 1400 penalty units, or both. (c) An offence of common assault (CC2022/2681), contrary to s 26 of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 2 years’ imprisonment. This is a transfer charge.

4. On 12 October 2023, the offender pleaded guilty to the following offences committed in 3 June 2022 (June 2022 offending) : a) Aggravated burglary by joint commission (CC2023/959), contrary to s 312 of the Criminal Code by virtue of s 45A. The maximum penalty for this offence is 20 years’ imprisonment, 2000 penalty units, or both.

1 Regrettably in 2025 I have of necessity undertaken medical leave for significant medical treatment. 2 File Number: SCC 23 of 2023. 3 File Number: SCC 209 of 2023. b) Damage property by joint commission (SCCAN2023/378), contrary to s 403 of the Criminal Code by virtue of s 45A of same. The maximum penalty for this offence is 10 years’ imprisonment, 1000 penalty units, or both.

5. As part of the June 2022 offending, the offender was also found guilty of the following offences, following a judge-alone trial before Berman AJ on 2 November 2023 (DPP v Higgins [2023] ACTSC 314 (Higgins)): a) Assault occasioning actual bodily harm by joint commission (CC2023/962), contrary to s 24(1) of the Crimes Act 1900 (ACT) by virtue of s 45A of the Criminal Code. The maximum penalty for this offence is 5 years’ imprisonment.

6. The offender pleaded guilty to the following offences committed on 30 July 2022 (July 2022 offending): a) An offence of failing to stop motor vehicle for police (CC2022/7389), contrary to s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) 4 (RTSM Act). The maximum penalty for this repeat offence is 3 years’ imprisonment, 300 penalty units, or both. A conviction for a repeat offence entails an automatic disqualification from holding or obtaining a driver’s license for a period of at least 12 months: Road Transport (General) Act 1999 (ACT) ss 5 63(1)(d), 63(2)(b) (RTG Act) . b) An offence of aggravated dangerous driving (CC2022/7390), contrary to s 7(1) of 6 the RTSM Act aggravated by virtue of ss 7A(1)(a)(i) and 7A(2). The maximum penalty for this repeat offence where the aggravating circumstance is applied is 5 7 years’ imprisonment, 500 penalty units, or both. A conviction for this repeat, aggravated offence also entails an automatic disqualification from holding or obtaining a driver’s license for a period of at least 12 months: RTG Act ss 63(1)(f), 8 63(2)(b), 63(4).

4 Included in SCC 23 of 2023. 5 The Court could order a longer period (s 63(2)(b). 6 Included in SCC 23 of 2023. See also PTB page 123, charge identifies the two main features. Section 7A set the aggravating circumstances for the offence against s 7. The one pleaded here is s 7A(1)(a)(i) (the person failed to comply, as soon as practicable, with a request or signal given by a police officer to stop the motor vehicle) and s 7A(2) (repeat offender). 7 This is because a circumstance prescribed in s 7A(1)(a)(i) applied and the offender is a repeat offender, see s 7(1)(b). 8 The Court could order a longer period (s 63(2)(b); s 63(4). c) An offence of driving a motor vehicle without consent (CC2022/10061), contrary to s 318(2) of the Criminal Code. The maximum penalty for this offence is 5 years’ imprisonment, 500 penalty units, or both. d) An offence of damaging property by joint commission (CC2022/7386), contrary to s 403 of the Criminal Code by virtue of s 45A of same. The maximum penalty for this offence is 10 years’ imprisonment, 1000 penalty units, or both.

7. The offender pleaded guilty to the first three charges of the July 2022 offending listed above (failing to stop, aggravated dangerous driving, driving motor vehicle without consent) on 2 February 2023. The offender later pleaded guilty to damage property by joint commission (CC2022/7386) on 21 August 2023.

8. Also on 2 February 2023, the offender pleaded guilty to the following transfer charges, being offending also committed on 30 July 2022: a) An offence of driving a motor vehicle with a level 3 prescribed concentration of alcohol (PCA) (CC2022/7391), contrary to s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (RTAD Act). The maximum penalty for this repeat offence for offenders with a level 3 PCA is 6 months’ imprisonment, 10 penalty units, or both (RTAD Act s 26(1)(b). A conviction for this repeat offence in these circumstances also means that the offender is automatically disqualified from holding or obtaining a driver’s license for a period of between 6 months to 3 years: 10 RTAD Act s 33(1)-(3). I note that the prosecution and counsel for the offender asked the Court to amend this charge on 18 July 2025 to delete the otiose word ‘special’. b) An offence of not giving required particulars as a driver involved in a crash (CC2022/7392), contrary to r 287(1) of the Road Transport (Road Rules) Regulation 2017 (Road Rules) by contravening r 287(2)(a) of the same. The maximum penalty for this offence is 20 penalty units. 11 c) An offence of driving whilst disqualified (CC2022/7393 ) contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (RTDL Act). The maximum penalty for this offence is 6 months’ imprisonment, 50 penalty units, or both. A conviction for this offence also means that the offender is automatically

9 Included in SCC 23 of 2023. 10 A shorter suspension period can be ordered, but not lower than 6 months (s 33(2)). 11 This appears to be a typographical error in the prosecution’s tender bundle, as the charge is listed in ICMS as CC2022/7393. disqualified from holding or obtaining a driver’s license for 12 months: RTDL Act s 32(5)(a).

9. Upon conviction for the offences committed in June and July 2022, the offender will be 12 in breach of several good behaviour orders associated with suspended sentences. Similarly, upon conviction, the offender will also be in breach of two other good behaviour 13 orders simpliciter, ie without associated suspended sentences. [Paragraphs 10 to 14 redacted]

Agreed facts

15. The agreed facts for sentencing for the current set of offences are set out in three separate statement of facts, which form part of the Prosecution Tender Bundle. The agreed facts may be summarised as follows.

June 2021 offending (attempted robbery, common assault, riding motor vehicle without consent)

16. At about 6:30am on 5 June 2021, the offender was on a street in Chapman, ACT. The 14 victim was at his residential address in Chapman, ACT.

17. The victim was woken by a neighbour knocking on the front door of his residence at about 6.45am. The neighbour informed him that three males were inside a vehicle belonging to the victim’s son, parked out the front of his residence. 15

18. When confronted, the males departed the location on foot.

19. The victim then got into his car and drove around the streets in the area in an attempt to 16 locate the males. A short time later, the victim located two of the males on a street in Rivett, ACT. The victim exited his vehicle in an attempt to speak with the men. Approaching the men in a civil manner, the victim requested that any item that had been 17 18 stolen be returned. One of these two men was the offender.

20. As the victim spoke to the two men, a third man appeared and continued to walk past the victim while the other two men began to run. The victim used his mobile phone to

12 PWS at [76]. 13 PWS at [87]. 14 PTB page 40, Agreed Facts at [3]-[4]. 15 PTB page 40, Agreed Facts at [5]. 16 PTB page 41, Agreed Facts at [7]. 17 PTB page 41, Agreed Facts at [8]. 18 PTB page 41, Agreed Facts at [10]. capture images of the two men that remained in close proximity to him. The victim 20 stated words to the effect of “I don't want any trouble; I just want the items back”.

21. Upon hearing this, the two men stopped running. The offender turned towards the victim, and began to charge at him, demanding his mobile phone. The victim did not surrender his phone, and this resulted in the offender continuing towards the victim with his fists 21 clenched in a manner to cause intimidation. This attempt to steal the victim’s mobile 22 phone is count CC2022/10336, attempted robbery, with a threat of violence being relied 23 upon by the prosecution for the purposes of the offence.

22. The offender made multiple attempts to punch the victim in the face. The statement of facts noted that the victim held fears for his safety and imminent harm due to the demeanour and aggression presented by the offender. The offender continued to make attempts to assault the victim, which eventually created a distance of approximately 10 24 metres between the victim and his vehicle. These multiple attempts constituted count CC2022/2681, common assault. 25

23. The other two men got into the victim’s vehicle. The offender then stopped approaching the victim, turned around and ran to the rear right hand side of the vehicle, entering the 26 vehicle into the rear passenger seat. The three men proceeded to steal the vehicle. 27 The victim filmed this on his mobile phone. This incident constitutes count CC2022/2682, riding motor vehicle without consent.

June 2022 offending (aggravated burglary, damage property, assault occasioning ABH)

24. In relation to the June 2022 offending, it is relevant to note that the offender had previously been “good mates” with a person (to be referred to as Mr A for anonymity and 28 clarity) who was previously in a relationship with the victim. The offender knew that the man lived with the victim “on and off” at a residence in Macquarie, ACT. The house is

19 PTB page 41, Agreed Facts at [9]. 20 PTB page 41, Agreed Facts at [12]. 21 PTB Page 41, Agreed Facts at [12]. 22 See PTB page 25, charge sheet for CC2022/10336. 23 PWS at [11]. 24 PWS at [11]. 25 PTB page 42 at [15]. 26 PTB page 42 at [16]. 27 PTB page 42 at [16]. 28 PTB page 82, SOF at [10]. located towards the end of a cul-de-sac. The victim also knew of the offender through 30 Mr A for about nine months prior to the offence.

25. Between 20 to 27 June 2022, the offender and Mr A had been communicating via Facebook Messenger regarding Mr A paying back $150.00. Extracts of the messages 31 were included in the statement of facts. At around 6.30pm on 27 June 2022, the victim observed that Mr A had received messages from the offender on his Facebook Messenger, which was signed in on the phone she was using. At this time, Mr A told the victim to not open the messages from the offender, as he did not want the offender to 32 know he had seen them.

26. On 28 June 2022, the offender and Mr A argued over Snapchat. The offender threatened Mr A, including by words to the effect of “I’m going to come after you” and “you wait and see what’s going to happen”. In response, Mr A blocked the offender. The victim and Mr A also had a disagreement on 28 June 2022, as a result of which the victim told Mr A to 33 stay at his parents’ house instead.

27. At about 9:51pm on 28 June 2022, the offender and another unknown male arrived at the victim’s house on a moped. The moped stopped briefly outside the house, with the unknown male getting off the moped before the offender proceeded to ride the moped 34 through an opening in a brick wall at the end of the cul-de-sac. The unknown male followed the moped on foot.

28. After parking the moped, the offender and the unknown male walked together on foot towards the victim’s property. The unknown male was carrying a sword with a white 35 36 handle, a “samurai-style sword”. The offender and the unknown male approached the front door of the house.

29. At this time the victim was in her bedroom with her 4-year-old daughter.

30. The victim then heard banging at the front door. This banging noise was the offender or the unknown male attempting to force entry to the property by kicking the wooden front

29 PTB 1 page 82 at [1]. 30 PTB 1 page 82 at [2]. 31 See PTB 1 page 83 at [3]. 32 PTB 1 page 84 at [4]. 33 PTB 1 page 84 at [5]. 34 PTB 1 page 84 at [7]-[8]. 35 PTB 1, page 84 at [9]. 36 PTB 1 page 81 at [3]. door. The victim’s daughter started to cry. As the banging continued, the victim 38 screamed words to the effect of “hey stop”, but the banging continued.

31. While holding her daughter, the victim proceeded to move closer to the front door to investigate the banging noise. The victim heard a voice she recognised to be that of the 39 offender, saying words to the effect of “one more kick bro, and it should be all good”.

32. The victim dialled 000. Carrying her daughter, the victim ran to an external glass sliding 40 door that led to her back garden and exited her house, leaving this door open. The victim then ran towards her fence and left her backyard via a gate. The victim walked to 41 her car, and with her daughter got into the front passenger seat and locked the doors.

33. By this time, the offender and the unknown male had broken down the front door and entered the residence. At least one of the men had the sword, with one of them also having a smaller knife, described as similar to a steak knife. This constituted count 42 CC2023/959, aggravated burglary by joint commission. This is most serious offending.

34. The offender and the unknown male caused a partial hole in a door, above and slightly to the right of the doorhandle. The statement of facts also detailed the damage as a result of the method of entry at the front of the house.

35. This was count CC2023/378, damage property by joint commission.

36. While this was taking place, a neighbour of the victim (the neighbour victim) emerged from his residence to investigate the noise and told the men to “go away”.

37. The two men ran from the victim’s home. The offender continued to the end of the cul-de-sac, where the moped was parked. However, the unknown male struck the neighbour victim with the sword. The neighbour victim ran back towards his residence. The unknown male approached the neighbour victim again before striking him a number of times with the sword. The neighbour victim put his hands up to try to protect his face. As 43 a result of the strikes, the neighbour victim suffered a large cut to the top of his left hand. This event constituted count CC2023/962, assault occasioning actual bodily harm.

37 PTB page 85 at [11]. 38 PTB page 85 at [11]. 39 PTB page 85 at [12]. 40 PTB page 85 at [13[. 41 PTB page 85 at [14]. 42 PTB page 85 at [15]. 43 PTB page 86, Statement of Facts at [20].

38. As noted above at [5], the offender pleaded not guilty to this offence. In the trial before Berman AJ, the offender did not dispute that the injuries suffered by the third victim amounted to actual bodily harm: Higgins at [20]. Rather, the offender disputed that he was criminally responsible for the injuries suffered by the third victim at the hands of the unknown male: Higgins at [4], [20]. Berman AJ was ultimately satisfied beyond reasonable doubt that the offender committed this offence by joint commission: see Higgins at [26]-[27], [32], [44]-[49], [51]. -+

July 2022 offending (damaging property by joint commission, various driving offences)

39. The facts of the of the July offending also involve the neighbour victim.

40. On the evening of 30 July 2022, the offender returned to the street where the victim and neighbour victim lived. At approximately 6:47pm, the offender approached the neighbour 44 victim’s residence before a co-offender also attended the front of that residence.

41. What followed was captured by the neighbour victim’s CCTV. The offender first struck the front door of the neighbour victim with his foot. A third unknown male then approached the offender and the co-offender at this time to pull them away. While this was happening, the neighbour victim was inside and could hear noises from outside his 45 residence. The neighbour victim yelled out “I call the police”.

42. The offender and the co-offender returned to the neighbour victim’s property numerous 46 times.

43. The front door of the third victim’s property was damaged. Further, the window next to the front door was broken. Damage was also occasioned to the neighbour victim’s car 47 during the incident.

44. This incident constituted count CC2022/7386, damaging property by joint commission.

45. The remainder of the offending occurred on the same day. At about 9.00pm, a man (the 48 last victim) was picking up his daughter from a party in the ACT. The last victim was in his car, and at the time observed someone walking behind the car while he was parked 49 and waiting for his daughter. The offender approached the driver door, reached into the

44 PTB page 149, Statement of Facts at [13]. 45 PTB page 149, Statement of Facts at [15]-[17]. 46 PTB page 149, Statement of Facts at [18]. 47 PTB page 149, Statement of Facts at [19]-[20], 48 July Statement of Facts at [22]. 49 July Statement of Facts at [22]-[23]. vehicle through the open driver’s window, took the key from the vehicle's ignition, and 50 opened the driver's door.

46. The offender then pulled the last victim from his car. The offender left with the car a short 51 time later.

47. The last victim reported the incident to the police. At about 10.50pm, police observed the car travelling on Belconnen Way. The police observed that the car had suffered significant damage and attempted to stop the car by activating their emergency lights and sirens. The car failed to do so, and a pursuit was commenced. The police lost sight 52 53 of the car a short time later due to speed. This initial failure to stop constituted count CC2022/7389, failure to stop for the police as a repeat offender.

48. Subsequently, at 10.59pm, the police observed the vehicle in question travelling on Belconnen Way and reengaged the pursuit. The police pursued the vehicle to O’Connor, ACT. The statement of facts noted that this pursuit lasted for 11 minutes, during which 54 the car reached a speed of 150 km/h in a posted 60 km/h zone.

49. The pursuit was terminated as the car collided with another vehicle in Dickson, ACT, crossing to the wrong side of the road while travelling at excessive speed. Unsurprisingly, at the time of the collision, the offender did not stop to exchange details 55 with the person collided with.

50. The car was eventually seen again in Acton, ACT. The car was followed along Barry Drive, where it reached speeds of 100 km/h in a posted 80 km/h zone. The rear tires of the car were destroyed, and the car left gouges in the road, with sparks and rubber flying 56 from both rear wheels.

51. The car entered the University of Canberra, and in an attempt to evade police the 57 offender drove the vehicle onto foot paths at high speed. The vehicle eventually came 58 to a stop in a dead end.

50 July Statement of Facts at [23]. 51 July Statement of Facts at [24]. 52 July Statement at [25]-[26]. 53 PWS at [37]. 54 July Statement at [27]. 55 July Statement at [27]-[28]. 56 July Statement of Facts at [29]. 57 July Statement of Facts at [30]. 58 July Statement of Facts at [31].

52. The police smashed the driver side window of the car. The statement of facts records that the offender was apparently still revving the engine in an attempt to get away. The 59 police applied a dose of capsicum spray to the offender. 60

53. Subsequently, the offender was arrested.

54. The events described above constituted the following counts: 61 a) Count CC2022/10061, driving a motor vehicle without consent. 62 b) Count CC2022/7390, aggravated dangerous driving as a repeat offender. c) Count CC2022/7392, not giving required particulars as a driver involved in a 63 crash.

55. At approximately 12.21am on 31 July 2022, the offender underwent breath analysis. The result recorded by the instrument was 0.139 grams of alcohol, being level three. Thus, this constituted count CC2022/3791, driving a motor vehicle with a level 3 PCA as a 64 repeat offender.

56. The police issued the offender with an immediate suspension notice and advised him that his right to drive was suspended for a period of 90 days. Relevantly, I note that the offender had been disqualified by the ACT Magistrates Court on 11 November 2021 for 65 holding or obtaining a driver’s license for three years. Thus, that the offender drove a 66 vehicle on 30 July 2022 constitutes count CC2022/7393, driving while disqualified. [Paragraph 57 redacted]

Victim Impact Statements 67

58. Three Victim Impact Statements (VIS) were tendered in this matter.

59. The first Victim Impact Statement (from the victim of the June 2021 offending) includes the following:

59 July Statement at [31]. 60 July Statement at [31]. 61 See PTB page 125. 62 PTB page 123 63 PTB page 139. 64 PTB page 137. July Statement of Facts at [35]. 65 PTB page 149-50; Statement of Facts at [22]/ 66 Statement of Facts at [11](f); PTB page 141. 67 The fourth victim did not tender a VIS. The first VIS was not read out, and the remaining two was read out by the informant. My son … had [h]is car broken into and items stolen. As a result he replaced the items and sold the car as he didn’t feel the make and model was secure anymore. I… was first assaulted by [the offender] before he and two others stole our car. We were without our car from 5 June to 7 September 2021 and received an insurance excess charge of $950. I was off work for [a] week and suffered many sleepless nights. I still wake at nights and listen to any possible noises. I have since installed security cameras and a gate/fence 68 across our drive to provide a barrier to the back of our property.

60. The second Victim Impact Statement (from the initial victim of the June 2022 offending) relevantly includes the following: I stand before you as a single mother, once feeling the safety and comfort of our home shattered in an instant. The night our house was invaded, I held my daughter tightly, terror 69 coursing through our veins… 70 The haunting memory and… the fear for our lives still echoes in our minds. My daughter and I cowered in corners, our sanctuary violated. The trauma etched in her innocent eyes has forced us to abandon our home, severing ties to the familiar, and disrupting the stability my child once knew. The incident compelled us to uproot our lives, leaving behind a neighbourhood that was once our community. My daughter, once enthusiastic about school, now grapples with the aftermath, forced to abandon her friends and the only school she had ever known. The mere mention of the suburb invokes fear in her, a constant reminder of the harrowing experience she was subjected to. I implore the court to consider the profound impact this heinous act has had on the emotional well-being of my child and me. The scars are not just physical; they run deep in our 71 psyche… … As we seek justice, I implore the court to recognise the depth of our anguish, the emotional toll on my daughter, and the irrevocable loss of our once harmonious home. We stand here not just as victims of a crime but as a family fractured and scarred by an ordeal that transcends the physical boundaries of our house.

61. The third VIS is from the neighbour victim of the June and July 2022 offending, and includes the following: Since this incident … happened to me, I [do not] fee[l] safe in my house. My son also has concerns about my safety. I also struggle to sleep at [night] as any noise outside makes me anxious and worried. The incident has caused me to be concerned every time I leave the house and my family are worried when they come to visit. I very rarely leave the house including for medical treatment on my liver as I am worried something will happen to my

68 PTB page 45. 69 There was an objection to the line including “pursued us relentlessly”: Transcript, December 2023, page 12 [5]-[15]. No reference to a pursuit or chase. 70 As agreed in December 2023 hearing, see Transcript, December 2023, page 13 [31]-[38]. 71 The reference to the victim’s dog is excluded, as the offender was not before me for animal cruelty. house. I suffer from a disability and do not feel safe in my home but have no option but to remain in my current house. I was happy to help people before but now I am too scared to 72 help anyone, especially when they come and knock on my door.

62. The Court recognises the serious and long-lasting effects of the offender’s conduct on all the victims and acknowledges the significant impact that the offences had on all the victims.

63. The victim of the June 2021 offending has been seriously affected by the crimes of the offender. The victim of the June 2022 offending, a mother, and her then four-year-old daughter have been profoundly impacted by the offending.

64. Counsel for the prosecution submitted that it is clear that the offending conduct of the 73 2021 offending has had a detrimental effect on the victim. In my view, this is undoubtedly correct. The victim speaks of sleepless nights, and his need to install 74 additional security measures. The victim of the June 2022 offending, included in her eloquent VIS the effect of the offending crime on both herself and her young child. These deleterious effects cannot be said to be deleterious effects that are unexpected from this appalling offending. These are serious crimes. All people should be able to be safe in their own homes. This mother, and this child should have been safe in their home; safe 75 in their sanctuary. They were not.

65. This Court acknowledges the profound importance of what all the victims had to say in their own words in their Victim Impact Statements.

Issues at the hearing

66. As correctly noted by the offender, the sentencing exercise before the Court is not 76 without its difficulties. Counsel for the offender properly submitted that, on the one hand, the offences include indeed very serious offences as set out above. This must be counterbalanced on the other hand, in counsel’s submissions, by the offender’s age, his 77 deprived background and the need for an “intensive rehabilitation” plan. There is force to this submission on the evidence before me. Intensive rehabilitation that leads to no further recidivism; that is, no further criminal activity on the part of an offender is clearly

72 See also Transcript, December 2023, page 10-11. 73 PWS at [44]. 74 PWS at [45]. 75 PWS at [46]. 76 OWS at [1]. 77 OWS at [2]. in the public interest, in the interests of this community and in the interests of the offender himself.

Objective seriousness

67. Without question, an assessment of the objective seriousness of an offence has always been a part of the sentencing process. As is well established, “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24] (Toumo’ua). Nevertheless, it is not necessary for a judge to indicate where the offence falls on a scale of low, midrange, or high criminality, as such nomenclature can be opaque; what is required is for a court to “identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29] (Muldrock); see also The Queen v Kilic [2016] HCA 48; 259 CLR 256 at [19].

68. It is convenient to divide the discussion of objective seriousness of the many charges in accordance with the date order of the relevant series of offending.

June 2021 offending Riding in motor vehicle without consent (CC2022/2682)

69. It is uncontroversial that the factors relevant to objective seriousness of this offence are as set out in R v Rosewarne [2021] ACTSC 216 at [124] (Rosewarne).

70. Thus the relevant factors are as follows: a) Whether the offender drove or rode in the vehicle: In this case the offender was a rider not a driver in the vehicle. b) The duration of the offending: In this case the duration of the of the offending as such is unclear. c) Whether the driving caused damage to the vehicle: see [(d)]. d) Whether the vehicle was recovered undamaged: In this case, the vehicle was not recovered.

71. The above stated identifying features are the features I take into account concerning the objective seriousness of this offence. Attempted robbery (CC2022/10336)

72. It is uncontroversial that the objective seriousness of an attempt offence is informed by several factors, including the level of sophistication and level of completion or ‘success’ 78 as such. In Cajina v The Queen [2009] ACTCA 2; 3 ACTLR 79, the Court of Appeal (Gray P, Penfold and Marshall JJ) adopted (at [29]) the factors stated in R v Taouk (1993) 65 A Crim R 387 thereby emphasising the importance of evaluating the attempt and the chances of completing the crime if the attempt were not interrupted: There was no evaluation [on part of the primary judge] of the seriousness of the offence as one of attempt rather than the commission of the substantive offence. Factors to be weighed are such as those referred to by Badgery-Parker J in R v Taouk (1992) 65 A Crim R 387 at 390 where he commented in respect of a charge of attempt to commit a substantive offence: After a sentencing judge has established the facts of the offence, his prime task is to evaluate the objective seriousness of the offence. In making such an evaluation, where the charge is of an attempt to commit a substantive offence, it will be relevant for the judge to consider, first, that the charge is of attempt only and, by hypothesis, the substantive offence was not completed; and it will be relevant to consider the chances that the attempt, if not interrupted, would have succeeded. If on the facts it appears that the attempt was unlikely to succeed or indeed, that although physically possible there was in reality no prospect that it would succeed, this is a matter which might be seen to reduce the objective seriousness of the crime. However it must also always be necessary for the sentencing judge to consider the seriousness of that which was attempted. In every case where a person is to be sentenced for an attempt to commit a substantive offence, such factors will need to be weighed if the evidence raises the question for consideration. It may be postulated that where the offence attempted is grave, a sophisticated attempt which came close to success is likely to attract a heavier sentence than a naïve and ill-prepared attempt predestined to fail. On the other hand, a determined and all but effective attempt to commit a minor crime would attract perhaps a more severe sentence than a naïve and inefficient attempt to do the same thing, although the relative triviality of the offence would tend to narrow the margin between the two outcomes. It cannot necessarily be postulated, however, that a naïve and ill-prepared, even incompetent, attempt to commit a serious offence must necessarily attract a lesser sentence than would be incurred by a serious and all but effective attempt to commit an offence of less gravity. There is clearly an interrelationship between the seriousness of the intended consequences and the real prospects of having achieved them, and that relationship has to be weighed in each case in the light of all of the circumstances. (emphasis added)

73. I note the observations of Refshauge J in R v BI (No 4) [2017] ACTSC 71 at [40], that it will not usually be the case that an attempt will be sentenced at the same level as the completed offence.

78 PWS at [5].

74. The prosecution correctly noted that, while there was no actual violence used, there was 79 nonetheless a real threat of violence. The robbery was not completed as no property was taken as the victim did not accede to the offender’s demand concerning the mobile 80 phone.

75. Similarly, counsel for the offender, correctly, in my view, submitted that the attempted robbery did not evince any “planning, organisation or sophistication”, and was a “very basic example of such offending”. Counsel for the offender submitted that the offending 81 would fall towards the lower end of seriousness for offending of this nature.

76. I accept the identifying features identified by both the counsel for the prosecution and counsel for the offender outlined above concerning the attempted robbery. The submissions accord with my view of the identifying features concerning objective seriousness of this offence as identified at [74] and [75] above.

Common Assault (CC2022/2681)

77. As is well established on the authorities, that the offence of common assault can be committed over a wide spectrum of offending involving actual or threatened violence. As such, the prosecution correctly submitted that the circumstances of the offending is an 82 important consideration in this case.

78. The prosecution submitted that the assault was of “moderate duration”, with multiple 83 attempted punches and the prosecution noted that the offence was committed in the morning, in public, and in a residential street: R v Davis [2021] ACTSC 335.

79. Counsel for the offender conceded that the common assault is of “moderate seriousness” given that there were multiple punches which avoided contact with the victim given his retreat.

80. I accept the identifying features identified by both counsel outlined above concerning the objective seriousness of the assault as I detailed above at [78] and [79].

79 PWS at [11]. 80 PWS at [12]. 81 OWS at [7]. 82 PWS at [13]. 83 PWS at [14]. June 2022 offending

Aggravated burglary (CC2022/959)

81. Counsel for the prosecution referred to the NSW guideline judgment in R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 (Ponfield), and submitted it was useful in assessing the objective seriousness of burglary in this jurisdiction: R v Fusimalohi [2015] 84 ACTSC 220 at [10] (Murrell CJ).

82. With reference to the Ponfield factors, counsel for the prosecution referred to the 85 following identifying features including the following: a) The prosecution referred to conditional liberty at the time of the offending. I note in this regard that the breach of conditional liberty is not a matter of objective seriousness but rather a subjective matter. I have discussed this in a number of decisions including R v Bandy [2018] ACTSC 261 at [29], and below at [203]. b) The offence appears to be the result of a degree of planning, as the offender went to the victim’s address because of a dispute with Mr A over $150.00. I accept there was a degree of planning. c) The prosecution referred to a history of engaging in a similar type of offending. I note again this is not an objective factor but rather to be considered under subjective matters. d) The offence was committed at the home of a young mother and the offending occurred at 9:51pm on a Thursday night, being a time at which it was likely that persons would be present inside the premises. I accept that this is a highly relevant matter that goes to objective seriousness. e) I note the damage to the property is separately charged. f) I note no property was stolen during the offending. g) Both victims (the victim and her daughter) suffered actual trauma as a result of the offending. I underline the seriousness of this offending in this regard.

83. Counsel for the offender agreed with the submissions of the prosecution and conceded 86 that this offending is a “serious example” of aggravated burglary as indeed it is.

84 PWS at [18]. 85 PWS at [19]. 86 OWS at [9].

84. I accept the identifying features identified by both counsel as I have outlined and discussed above, concerning the objective seriousness of the aggravated burglary. I have delineated in that discussion what the factors are that are relevant to objective seriousness of this offending.

Damage property (SCCAN2023/378)

85. It is uncontroversial on the authorities that the factors relevant to consideration of objective seriousness of the damage property offence include the motive for the damage (eg. whether it was malicious or occurred to facilitate a burglary) and the extent or value 87 of the damage: Rosewarne at [120].

86. Relevantly, the prosecution properly submitted that the damage in this instance arose in 88 facilitation of a burglary, and noted the extent of the damage being: a) The front door being completely separated from its frame. b) A piece of wood being partially torn from the door frame. c) Two locking mechanisms on the front door being dislodged and broken. d) Scratches and scraping to the front door. e) Scuff and shoe marks on the exterior surface of the front door. 89 f) A partial hole to an internal wooden bedroom door.

87. Counsel for the offender properly agreed with the submissions of the prosecution, 90 conceding that this offending is a “serious example” of a damage property offence.

88. I accept the identifying features highlighted by both counsel, as I have outlined above concerning the objective seriousness of the damage property offence. I agree on the evidence with the factors identified.

Assault occasioning actual bodily harm (CC2023/962)

89. R v Redmond (No 2) [2022] ACTSC 295 at [7] was referred to regarding the relevant 91 factors informing the objective seriousness of this offence: The objective seriousness of assault occasioning actual bodily harm is informed by the conduct of the offender including the degree of violence used or the ferocity of the attack,

87 PWS at [20]. 88 PWS at [21]. 89 PWS at [22]. 90 OWS at [9]. 91 PWS at [23]-[24] the circumstances surrounding the offending and the nature of the injury caused by the offender. Ordinarily but not necessarily the most significant factor is the nature of the injury: see Waterfall v R [2019] NSWCCA 281, [33].

90. The prosecution referred to the following identifying features with respect to the 92 circumstances surrounding the offending and the degree of violence used. I accept the following features as identified: a) The neighbour victim had exited his residence to investigate the noise coming from the house next door. b) The neighbour victim told the offenders to “go away”. c) The unknown co-offender used a sword to commit the offence and cause the resultant injury. d) The neighbour victim was struck multiple times with the sword.

91. I further note that the neighbour victim suffered a large cut to the top of his left hand, 93 which bled significantly.

92. As noted earlier at [38], the offender was found liable for the offence by joint 94 commission.

93. It is well established at law that sentencing judges may draw a distinction between criminal liability for offending and individual roles: see KR v R [2012] NSWCCA 32 per Latham J (Whealey JA and Harrison J agreeing) at [19]-[22]; Burrows v R [2017] NSWCCA 45 at [37]; R v Hagen [2022] ACTSC 362 at [27].

94. Although participants in a joint criminal enterprise are equally liable as a matter of criminal responsibility for the offence committed, it is nevertheless the task of the Court to address the moral culpability of each individual offender. An assessment of moral culpability as distinct from criminal responsibility, where the evidence does differentiate between the acts of offenders, is appropriate: see Beale v R [2015] NSWCCA 120. In this case there is a relevant and distinct differentiation on the evidence, between the offender and the unknown co-offender. The Court takes that into account on sentence in relation to the moral culpability concerning this offence.

95. This Court will differentiate between the relative culpability by reference to the conduct of each in the joint criminal enterprise: R v JW [2010] NSWCCA 49; 77 NSWLR 7. See

92 PWS at [25]. 93 PWS at [26]. 94 PWS at [27]. also: R v Wright [2009] NSWCCA 3, R v Hoschke [2001] NSWCCA 317 at [18], R v Goundar [2001] NSWCCA 198; 127 A Crim R 331, and GAS v The Queen; SJK v The Queen [2004] HCA 22; 217 CLR 198.

96. The prosecution properly conceded that the offender’s culpability for this offence is less 95 than that of the unknown co-offender. I accept this on the basis of the evidence that was before Berman AJ.

97. Counsel for the offender correctly submitted that this Court should not accept that the offender knew that the sword had been used on the victim’s dog.

98. Further, counsel for the offender submitted that the offender made no approach to the neighbour victim and that it was the unknown co-offender that engaged in all relevant physical conduct. I underline in this regard that Berman AJ relevantly stated the following: I am satisfied beyond reasonable doubt that the accused must have been aware that there was a substantial risk that in getting away from the premises the unknown male would inflict actual bodily harm on someone in order to make good their escape. He may not have contemplated that it would be the neighbour… who would be the victim of such an assault but that does not matter. The precise identity of the victim of the offence committed by the unknown male is not relevant nor is the fact that he was the next-door neighbour.

99. Finally I note counsel for the offender submitted that the offender’s culpability for this 96 offence did not meet the threshold for imprisonment.

100. I accept generally the identifying features submitted by both counsel, as outlined above. Further, I note the relevant comments of Berman AJ. Finally, as to whether this sentence meets the threshold for imprisonment is a matter I will deal with later in this judgment.

101. Suffice to say at this stage that I am not persuaded that the offence does not meet the threshold for imprisonment.

95 PWS at [29]. 96 OWS at [13]. July 2022 offending 97 Damage property by joint commission (CC2022/7386)

102. Counsel for the prosecution submitted that the damage in this instance was occasioned maliciously, representing another act of harm occasioned on the same victim, being the 98 neighbour victim.

103. In relation to this offence, counsel for the offender submitted that in so far as the prosecution relied on the fact that the victim is the same victim as the assault occasioning bodily harm charge (from the June 2022 series), it cannot be established beyond reasonable doubt that the offender knew that the victim was the same, given the 99 offender’s lack of direct involvement in the prior assault occasioning actual bodily harm. I accept this submission as it cannot established on the evidence with the requisite level of proof being proof beyond a reasonable doubt.

104. While counsel for the offender conceded that the offence was “wanton”, it was also submitted that it was not a serious or egregious example of such offending, and as such 100 submitted that the imprisonment threshold is not met.

105. I accept generally the identifying features submitted by both counsel as outlined above. As to whether this offence meets the threshold of imprisonment, I will deal with that question later in this judgment.

Aggravated dangerous driving (CC2022/7390)

106. It is accepted that the following factors inform objective seriousness of an offence of aggravated dangerous driving: a) The extent to which the public was put at risk, including the location of the driving (for example, whether it was a busy area with many pedestrians) and the time of the driving. b) Whether there were any passengers in the vehicle who were put at risk. c) The extent to which the police were put at risk when trying to terminate the driving.

97 The property that was damaged was the front door, front window, pot plants and vehicle of the neighbour victim’s residence. 98 PWS at [33]. 99 OWS at [14]. 100 OWS at [15]. d) The variety and duration of aspects of the driving that were dangerous; the 101 extent to which it was a multifaceted and/or lengthy course of conduct.

107. In this case, the prosecution properly submitted and I accept that: a) The driving was late at night. b) The driving involved multiple police pursuits, driving at high speeds, a collision with another vehicle, and driving on footpaths and the wrong side of the road. c) Damage was caused to the road by virtue of the damaged wheels of the vehicle. d) The driving only ended due to the offender reaching a dead-end at the University.

108. As such, the prosecution submitted and I accept on the evidence that this was a lengthy course of conduct involving dangerous driving where both the public and police were 102 placed at risk. I note the duration of the offending.

109. Counsel for the offender properly accepted that the driving offences generally were 103 serious matters, subject to one caveat. I will deal with this caveat when I discuss the transfer charges at [112].

Driving motor vehicle without consent (CC2022/10061)

110. The prosecution noted that the offender drove the motor vehicle for a ‘moderate’ duration 104 (the second police pursuit lasting 11 minutes). While the vehicle was recovered, the prosecution noted that the vehicle suffered significant damage. Further however, the prosecution properly conceded that the nature of the driving cannot be considered in the inquiry regarding objective seriousness on this count, as the offender has been charged 105 separately with aggravated dangerous driving.

Failing to stop for police (CC2022/7389)

111. In relation to the objective seriousness of this offence, counsel for the prosecution noted that the pursuit was only terminated due to the speed of the offender’s driving. The prosecution submitted that the nature of the driving was clearly a deliberate and blatant 106 act of attempting to evade the police. I agree on the facts presented before me.

101 R v Rosewarne [2021] ACTSC 216. 102 PWS at [35]. 103 OWS at [15]. 104 PWS at [36]. 105 PWS at [36]. 106 PWS at [37]. Transfer Charges - CC2022/7391 (Drive motor vehicle with level 3 PCA), CC2022/7392 (Failure to give particulars following crash), CC2022/7393 (driving whilst disqualified)

112. In relation to the transferred driving charges, the prosecution correctly submitted that 107 care must be exercised to not “double count” the nature of driving. 108

113. For the driving with a level 3 PCA offence (CC20227391), reference was made to Scott v Wynants [2009] ACTSC 62; 4 ACTLR 13 (Scott), Re Application by Attorney General (No 3 of 2002) [2004] NSWCCA 303; 61 NSWLR 305 at [107]-[108] concerning the factors that tend to aggravate the moral culpability involved in this offence (at [20]).

114. In this case, the reading of the offender was correctly submitted to be towards the “top end of the range” for level 3.

115. In relation to the charge of failing to give particulars (CC2022/7392), it was clearly this deliberate choice of the offender to not give particulars to the owner of the other vehicle 109 involved in the collision, and that this was done in order to evade police.

116. Finally, in relation to the driving while disqualified offence (CC2022/7393), the prosecution noted that it is relevant that the offender was not lawfully allowed to be driving, and that the driving in question was involved in the commission of other 110 offences.

117. Counsel for the offender correctly submitted that care must be taken so that the Court 111 does not double count or breach the De Simoni principles. That is in the sense of the drink driving offending being “aggravated by the conduct of the driving” given that the 112 conduct of the driving has essentially been separately charged. I accept the submissions of both counsel that double counting and double punishment must be avoided in sentencing.

118. I interpolate to note that, from the charge sheet for CC2022/7390 (aggravated dangerous 113 driving), it appears that the offender’s failure to stop for police was relied on as the factor that acted to aggravate the charge: see RTSM Act s 7A(1)(a)(i).

119. Counsel for the offender submitted that the driving contrary to law may be seen as an “internally aggravating factor” of the aggravated dangerous driving charge. As such, any

107 PWS at [38]. 108 PWS at [39]. 109 PWS at [41]. 110 PWS at [42]. 111 OWS at [17]. 112 OWS at [17]. 113 See PTB page 123. sentence of imprisonment should, in the offender’s submission, be made fully concurrent 114 as both the drink driving and the driving disqualified offences are “inextricably linked”. I will deal concurrency later in this judgment at [306].

120. Finally, counsel for the offender noted that the failure to give particulars offence is only 115 punishable by a fine and speaks for itself.

Attempts to rehabilitate on the part of the offender

121. At the hearing on 10 December 2024, the parties advised the Court that an agreed timeline of the offender’s efforts at rehabilitation would be provided to the Court. That timeline is summarised below: a) Wayback Ltd 1) On 6 March 2024, the offender was granted bail to attend Wayback Ltd drug and alcohol rehabilitation in Harris Park, New South Wales. 2) The offender was suspended from this service on 28 March 2024 for not engaging with the service to a sufficient standard. 3) The offender was brought before the Court on 2 April 2024 for the breach of his bail conditions to continue attending the drug rehabilitation service. (b) Canberra Recovery Services 1) On 26 April 2024, the offender was granted bail to attend Canberra Recovery Services. This is a residential drug and alcohol rehabilitation program in Fyshwick, ACT. 2) The offender commenced his induction phase at this program on 29 April 2024, before progressing to the next stage on 27 May 2024. 3) The offender elected to change to the day program on 11 June 2024, “amidst allegations he was observed to be under the influence of illicit substances and had high levels of Urea (alleged to be a ‘blocking’ agent)”. 4) The offender’s bail was continued on 13 June 2024 despite this change, with the offender to attend the Canberra Recovery Services day program. The offender presented himself to the Court following this change in program.

114 OWS at [18] 115 OWS at [19]. Subjective matters

122. The offender is now 22 years of age.

The psychologist’s report

123. The report of Ms Leesa Morris (the psychologist) dated 9 December 2024 (the psychologist’s report) was tendered on behalf of the offender during the December 2024 hearing. For the preparation of the report, the psychologist assessed the offender on 22 116 September 2023 and 2 October 2024 via AVL while the offender was at the AMC. The psychologist estimated that the interviews spanned a total duration of approximately one hour and 45 minutes.

124. The psychologist’s report provided details regarding the offender’s subjective circumstances and made some psychological diagnoses. I will outline the psychologist’s report’s conclusion as to the subjective circumstances of the offender first.

Subjective Circumstances

125. The psychologist noted the offender as having a history of not complying with conditions in the community. The psychologist [redacted]. The offender for his part stated that he had no custodial infractions as an adult at the September 2023 interview. I note the August 2023 and December 2023 PSRs in so far as the PSRs recorded that the offender had received behaviour warning on three occasions, and one disciplinary action in 117 January 2023.

126. [Redacted]. The psychologist’s report noted that the offender’s mother re-partnered in his adult years. When queried as to the quality of his relationship with his stepfather, the offender said “he makes [the offender’s mother] happy.” The psychologist’s report also 118 noted that the offender lives with his mother when in the community. [Paragraphs 127 and 128 redacted]

127. [Redacted]. The offender was again exposed to the suicide of a friend who was detained 119 in the Alexander Maconochie Centre in March 2022.

128. The psychologist’s report noted that no incidents of alcohol abuse, gambling, child sexual assault or criminal activity were reported in the offender’s family history. I pause to note,

116 Psychologist’s report page 1. 117 August PSR page 1; December PSR page 1. 118 Psychologist’s Report page 2 [2.1]-[2.2]. 119 Psychologist’s orris Report at [2.5]. that the August 2023 PSR and December 2023 PSR, which noted that the offender’s 120 mother, siblings, and then-partner all have criminal records. [Paragraph 131 redacted]

132. In relation to the offender’s education, the psychologist’s report noted that the offender ceased attending school in year seven, and that the offender had received suspensions. [Redacted]. The offender reported being disciplined in primary school for “talking, not sitting in [his] chair”, and not doing what was asked of him. The offender denied any 121 bullying issues to the psychologist but noted his difficulty with friendships. The psychologist’s report noted that the offender had poor attendance at school, and that the 122 offender participated in “risk-taking activities” and leaving home without notice.

133. The psychologist’s report noted that the offender indicated in September 2023 that he aspired to go to university and study something that would allow him to “give back and stop people from getting [to the AMC]”. The offender noted that he was doing a “pathways to university course”, but that this was interrupted when he was struggling with his mental 123 health.

134. Similarly to the August 2023 PSR and the December 2023 PSR discussed later, the offender noted that he was employed in “steel-fixing” prior to beginning his Year 12 studies. The offender also worked for about “six or seven-months” doing demolition, work 124 that the offender stated he enjoyed.

135. The offender’s relationship with his previous partner began in May 2022, and the 125 psychologist’s report noted that this was the offender’s only significant relationship. The offender “broke away” from his partner in around March 2024, and reported that he did not handle the breakup “very good”.

136. In relation to the offender’s health, the psychologist’s report did not record any “significant 126 health issues or injuries requiring treatment or medication”. I note the information noted in the August 2023 PSR and the December 2023 PSR in so far as they record the offender taking Buvidal injections at the time.

120 See August 2023 PSR page 2; December 2023 PSR page 2. 121 Psychologist’s Report at [3.2]. 122 Psychologist’s Report at [3.4]. 123 Psychologist’s Report at [3.3]. 124 Psychologist’s Report at [4.1]. 125 Psychologist’s report at [5.1]. 126 Psychologist’s Report at [6.1].

137. The psychologist’s report also provided further information regarding the offender’s drug and alcohol use. First, the psychologist’s report stated that the offender began using alcohol at 12 years of age “when I could get it,” increasing to daily consumption from 127 around 13 years of age until his arrest in July 2022. The offender reported that he used 128 “mostly alcohol” in the period leading up to his arrest.

138. The psychologist’s report also noted that the offender began using marijuana when he 129 was 12 years of age, for around five years. The offender reported that he “didn't like the way it made [him] feel” as marijuana “increased my anxiety”, leading him to cease his use.

139. The psychologist’s report stated that the offender first used “ice”/crystal methamphetamine when he was 13 years of age and used this daily until he was 16 years of age. The offender reported that he had stopped in 2019 “when [his] granddad died”. The Psychologist’s report correctly noted that previous PSRs attributed this cessation to engagement with Ted Noffs counselling. 130

140. The psychologist’s report noted that the offender began using heroin in 2024. The offender reported going to “heroin” to deal with the depression arising from his break-up, 131 132 and that he just “thought ‘what is the strongest depression killer?’”.

Psychological Diagnosis

141. First, the psychologist noted that the offender met the DSM-V Text Revision (DSM-V TR) criteria for Alcohol Use Disorder, Moderate, “in early remission,”. This is based on the 133 offender’s reports to the psychologist.

142. The psychologist reported using a “Structured Clinical Interview for DSM-V Disorders” in 134 part during the interview with the offender. The psychologist’s report explained that the structured interview has proven more accurate and comprehensive than “less formally structured interviews”: This structured interview has been developed to increase diagnostic reliability though standardising the assessment process. This enables various mental health professionals to agree on diagnoses. It also increases diagnostic validity by systematically probing for

127 Psychologist’s Report at [7.1]. 128 Psychologist’s Report at [7.4]. 129 Psychologist’s Report at [7.2]. 130 Psychologist’s report at [7.6]. 131 Psychologist’s Report at [5.2]. 132 Psychologist’s Report at [7.6]. 133 Psychologist’s Report at [7.10]. 134 Psychologist’s Report at [8.1]. symptoms that might otherwise be overlooked. It was developed over the years since 1983 by the National Institute of Mental Health. This instrument has proven to be more 135 accurate and more comprehensive than less formally structured interviews. 136

143. The psychologist assessed the offender’s psychological symptoms in September 2023 and October 2024. The psychologist relevantly noted that documentation suggested that the offender previously received “six sessions of intervention” with a psychologist prior 137 to 24 July 2023.

144. Ultimately, the psychologist diagnosed the offender with ‘Conduct Disorder, adolescent- 138 onset type, severe’ and ‘antisocial personality disorder’: The history provided by [the offender] and supported through numerous reports and assessments indicate that he would have met diagnostic criteria for F91.2 Conduct Disorder, adolescent-onset type, severe. As his behaviour has continued, and Mr Higgins appears to have become more sophisticated in his reports to assessors, it is appropriate that this diagnosis is now superseded by F60.2 Antisocial Personality Disorder. This is a difficult diagnosis to direct at a person as young as Mr Higgins, however, it is appropriate as confirmed by the psychopathy testing below.

145. In relation to the diagnosis of Conduct Disorder, the psychologist stated that it was fortunate, as adolescent-onset Conduct Disorder has “a more positive trajectory than childhood-onset, with change possible”. However, the psychologist observed that this would require an “intensive schema therapy with a Forensic Psychologist”. the psychologist noted her awareness of one such psychologist in the ACT, but as the practitioner works privately this likely places her services outside of the offender’s 139 resources.

146. Relevantly to the offender’s antisocial personality diagnosis, the psychologist’s report noted the results of a Hare Psychopathy Checklist Screening Version (Hare PCL:SV) test administered on the offender. The psychologist described the test as a shorter version of the Hare Psychopathy Checklist, and noted that without using tools such as the Hare PCL:SV it is not possible to accurately diagnose antisocial personality 140 disorder. A score of 18 or above, in the psychologist’s opinion, is “highly indicative of psychopathy”. The offender scored 19 from his interviews, which in the psychologist’s view suggested that the offender presented with a “psychopathic personality traits”.

135 Psychologist’s Report at [8.1]. 136 Psychologist’s Report at [8.2]-[8.7]; [8.8]-[8.12]. 137 See Psychologist’s Report at [8.7]. 138 Psychologist’s Report at [8.16]. 139 Psychologist’s Report at [8.17]. 140 Psychologist’s Report at [10.1]. [Paragraphs 147 and 148 redacted]

149. Of particular concern, the psychologist stated that the offender had been observed in PSRs to seek assistance, then quickly disengage: [The offender] is noted in the Pre-Sentence Reports to seek assistance, and then quickly disengage. He appeared to be interested to see what outcome he was able to secure for himself and then disengaged when he was required to change his behaviours. [The offender] has frequently failed to complete programs due to interpersonal difficulties with workers and authority figures. He was also noted to present two versions of himself to workers, one that expressed remorse and guilt, and another that wished to increase the ‘thrill’ of his offending 141 behaviour and didn’t care about anyone or any consequences.

150. The psychologist stated that the offender had been recorded in documentation to make claims about services that he was willing to engage with, but “will continue to change his 142 mind in order to avoid having to follow through with his statements”.

151. Similarly, the psychologist noted that the offender had been observed in both interviews and provided documentation to use “phrasing that was consistent with expected positions”.

Other material relevant to subjective circumstances

152. As part of the documents tendered, in evidence before me are the following pre-sentence reports (PSRs): a) A PSR dated 7 August 2023 (the August 2023 PSR). This PSR also contained a brief ICO Assessment Report (ICOAR). b) A PSR dated 5 December 2023 (the December 2023 PSR). This PSR also contained a brief ICOAR.

153. It is self-evident that these PSRs are somewhat out of date. The offender did not attend a hearing on 7 August 2024, and I issued a warrant for his arrest.

154. Regrettably, after the offender’s arrest and remand, the offender did not choose to engage with the authors of the PSR and the ICOAR reports. As such, Corrections was only able to produce a “no-show” PSR dated 8 October 2024 (the “no-show” PSR) and a “no-show” ICOAR dated 8 October 2024 (the “no-show” ICOAR).

155. As such, the most up to date report I have concerning the offender’s subjective circumstances emerges from the psychologist’s report. I also note the timeline of the

141 Psychologist’s Report at [8.14]. 142 Psychologist’s Report at [8.15]. offender’s time in rehabilitation over the course of 2024 (the rehabilitation timeline), referred to the Court as a matter of joint position of the parties on 8 January 2025.

156. Additionally, in evidence before me are PSRs prepared in relation to the offender in 2018 and 2019. I note that the 2019 PSR contains no relevant details, as the offender chose not to engage with the author during the preparation of that report. [Paragraphs 157 and 158 redacted]

August 2023 PSR

159. This PSR relates to both the June 2021 and July 2022 offending, save for the damage 143 property by joint commission charge (CC2022/7386).

Familial background

160. It is clear, in my view from the PSR, that the offender has had a severely disadvantaged background.

161. The offender reported to the author of the August 2023 PSR that he was born and raised in Canberra, and is one of two children of his parent’s union, and has a younger half-brother. The offender described his upbringing in generally negative terms, noting he 144 had been exposed to illicit substance use from a young age.

162. [Redacted]

163. The offender described currently having a positive relationship with his mother, and stated they had remained in contact while he had been in custody. By contrast, the offender reported no contact with his father since his early childhood. The author noted that the offender’s mother verified this information and that both the offender’s parents and brothers had criminal records.

Further Relevant Matters

164. The offender reported that he had been residing with his mother and younger brother prior to entering custody.

165. The report further noted interruptions in the offender’s education. The offender reported that following year seven, his schooling [redacted]. The offender reported he had been

143 See August PSR page 1, 4. 144 August PSR page 2. enrolled in Year 12 at a college in 2021 but had subsequently failed to complete these 145 studies.

166. The offender reported to the author that he had been employed in the demolition industry for approximately seven months prior to entering custody, and that this had been his 146 longest term of employment. The offender’s mother described the offender as possessing a strong work ethic and noted that he had been well regarded by his employers and colleagues. At the time of this report, the offender worked as a sweeper 147 at the AMC.

167. For his part, the offender stated an intent to return to the construction industry upon release. However, the offender identified that his long-term goal was to study at university and to pursue a career that would enable him [redacted]. The offender claimed that, as a result of having completed a course in construction while in custody, the offender would have a position in the industry upon release. However, the author noted 148 that this claim was unable to be verified.

168. The offender reported to the PSR author that he had been undertaking a university bridging course while in custody. However, the author referred to AMC education staff verifying that the offender had not completed the course, nor any of the required 149 assessments.

169. Relatedly, this report also cited service records which indicated that the offender made numerous attempts to enrol in the Brief Intervention Programs while in custody. However, the offender was regrettably unsuccessful in these attempts, as these programs had 150 been temporarily removed from the programs schedule. The author noted that the Corrections Programs Unit advised that the offender could be assessed for the EQUIPS (Explore, Question, Investigate, Practice, Succeed) suite of therapeutic and educational programs aligned to his areas of criminogenic risk once sentenced.

170. The August 2023 PSR noted that, for his part, the offender completed several self-paced booklets including “Keeping Myself Well”, “Self Esteem”, “Goal Setting”, “Conflict Resolution” and “Introduction to Recovery”. It was additionally confirmed the offender

145 August PSR page 2. 146 August PSR page 2. 147 August PSR page 3. 148 August PSR page 3. 149 August PSR page 3. 150 August PSR page 3. had completed courses in Safe Work Practices, Hygienic Practices for Food Safety, Responsible Service of Alcohol and Construction.

171. I note that the offender stated to the author an intent to enter a residential rehabilitation facility immediately after being released from custody.

172. To the author of the report, the offender claimed to have some pro-social friends in the community, however noted that most of his companions had been involved in some form of criminal activity.

173. The offender reported that he had been in the company of other people during the commission of the current offences. However, the offender indicated to the author of the report his reluctance to discuss this further as he did not want their involvement 151 recorded.

Alcohol and Drug Use

174. To the author of the August 2023 PSR, the offender reported a history of alcohol abuse from when he was approximately 11 years old. The offender stated he often drank to intoxication on weekends and at social gatherings and had experienced memory loss. The offender noted one occasion where he had been hospitalised due to alcohol 152 consumption.

175. The offender’s mother for her part attributed the offender’s alcohol abuse as being related to his traumatic childhood.

176. As to drug use, the offender reported that he began using cannabis when he was 12 years old, smoking the substance daily until he was 17. The offender additionally reported the occasional use of other substances, including prescription medications and 153 heroin. The offender reported commencing methamphetamine use at the age of 13 years, which escalated to the daily use of up to a few points of the substance every day.

177. The author of the report noted that the offender provided conflicting information regarding his illicit substance use. The offender initially stated that he had ceased all use of illicit substances at around 17 years of age, after engaging in counselling. However, the offender later reported he had used illicit substances up until his incarceration in August 2022.

151 August PSR page 3. 152 August PSR page 3. 153 August PSR page 3.

178. The author noted that the offender was reluctant to disclose his drug use in recent years and his current use of illicit substances. However, the offender again identified that he needed to attend a residential rehabilitation facility upon his release from custody in order to achieve abstinence.

179. Finally, the report noted that during the current custodial period (presumably up until the date of the report), the offender had been subject to one urinalysis test on 8 November 154 2022. The test returned a negative result.

Medical, Emotional and Mental Health

180. The August 2023 PSR noted a Canberra Health Service discharge summary dated July 2020, which recorded the offender as being diagnosed with Attention- Deficit/Hyperactivity Disorder (ADHD), drug induced psychosis, substance use disorder and alcohol use disorder.

181. The August 2023 PSR also noted a Canberra Health Services letter dated March 2023 and updated information received on July 2023 which indicated that the offender had no current health or mental health diagnoses, nor current medications or treatments apart 155 from monthly Buvidal injections which commenced 2023.

182. For his part, the offender denied any current diagnosis of ADHD. The offender also reported no history of serious mental health conditions and denied ever self-harming or experiencing suicidal thoughts. However, the offender did disclose experiencing anxiety 156 and depression at times.

183. The offender’s mother stated a belief that the offender requires further psychological assessment in order to address childhood trauma. For his part, the offender also reported to the author that he had expressed interest in engaging with a psychiatrist to explore his mental health and any related diagnosis. The offender claimed this option had been unavailable to him while in custody. The author cited service records which verified that the offender engaged with the Supports and Interventions Unit at AMC for four psychology sessions since April 2023, with his psychologist reporting positive 157 engagement during these sessions.

154 August PSR page 3. 155 August PSR page 4. 156 PSR page 4. 157 PSR page 4.

184. The author opined that the offender may benefit from further assessment to identify and 158 confirm any diagnoses.

December 2023 PSR

185. I note that this PSR related to the damage property by joint commission offence that formed part of the July 2022 offending.

186. As noted by the author of the December 2023 PSR, the offender presented as “uninterested in participating” and repeatedly stated that the information he reported to the author of the August 2023 PSR remains unchanged. As such, the author noted that the majority of the information from the December 2023 PSR has been extracted from the August 2023 PSR.

Prior contact with corrections

187. The information contained in the December 2023 PSR on this subject is broadly similar to the August 2023 PSR. The December 2023 PSR did clarify that the offender received behavioural warnings on three occasions and commendations for positive behaviour on 159 two occasions since he was held on remand in August 2022.

Other matters

188. Beyond similar information to that reported in the August 2023 PSR, the offender relevantly disclosed to the author of the December 2023 PSR [redacted].

189. The December 2023 report noted that the offender has successfully maintained his employment as a sweeper. The offender was also enrolled on a Young Offender Pilot Program on 21 September 2023, although he was exited on 9 October 2023 due to poor attendance.

190. The offender relevantly reported that, at the time, the offender had submitted applications to several residential rehabilitation programs in the community, including the Triple Care Farm, Wayback, We Help Ourselves (WHOS), and Oolong House.

Medical, Emotional and Mental Health

191. The offender described his current mental health as stable. However, the author of the December 2023 PSR noted that service records indicate that the offender was identified by custodial staff as a “Prisoner at Risk” on 31 October 2023. The identification was

158 PSR page 5. 159 December PSR page 1. made following observations that the offender was of “unkempt appearance, poor self- 160 care and unsettled behaviour”, as well as demonstrating “general alert behaviours”.

Remorse

192. To the author of the August 2023 PSR, the offender acknowledged that he had read the 161 statement of facts for the June 2021 offending. However, the offender stated that he 162 did not fully agree with it, denying that he had assaulted the first victim at any time. Nevertheless, the offender acknowledged that he did take the victim’s vehicle, and that he was accompanied by two other individuals at the time of the offences. The offender indicated that he was unwilling to discuss his accomplices further, noting that he has 163 taken responsibility solely.

193. The offender also acknowledged to the author of the August 2023 PSR having read the 164 statement of facts for the “traffic-related” July 2022 offences. The offender stated that he agreed with the statement of facts, although he was reluctant to discuss the incident in detail. The offender admitted he had been under the influence of drugs and alcohol at the time of the offences. The offender stated he had only driven in a dangerous manner due to him being chased by police and claimed that whenever he had driven a motor vehicle on previous occasions, he had followed all road rules and considered the safety of other road users.

194. The author of the August 2023 PSR also noted the offender’s negative views regarding his previous disqualification from holding or obtaining a driver’s licence, noting his belief that it is unfair that he had been unable to obtain a driver’s licence for such a lengthy period following previous driving offences.

195. Ultimately, the author of the August 2023 PSR concluded as follows regarding the offender’s attitude to the offences covered in the report: Whist [the offender] stated he mostly agreed with the Statement of Facts for the current offences and demonstrated some victim empathy, he minimised his offending behaviours, 165 and his attitude toward his driving related offending was of concern.

196. In relation to the damage property charge (CC7386/2022) of the July 2022 offending, the December 2023 PSR noted that the offender did not dispute the AFP statement of facts.

160 December 2023 PSR 3. 161 See PSR page 4. 162 PSR page 4. 163 PSR page 4. 164 PSR page 4. Note the lack of inclusion of the relevant count for damage property. 165 August 2023 PR page 5. However, as noted by the prosecution, the offender claimed that he was unable to recall the details of the offence as he was heavily intoxicated at the time of the offending. The author of the December 2023 PSR opined that while the offender accepted responsibility 166 for his behaviour, he demonstrated “limited victim empathy”.

197. The psychologist’s report recorded the offender’s attitude towards the June 2022 offending in so far as it relates to the victim with a child. I would never ever go into a woman’s house, I thought they weren’t there and that’s on me. 167 I would never go into a house with those kinds of people [ie. a woman and a child] in there.

198. When asked if there was anything the offender would like to say to the victim, the offender misinterpreted the question as one inquiring as to whether he felt anger or sought 168 revenge. In this misconception, the offender stated that he was in contact with the victim prior to his bail condition restricting contact: I hold no anger to her, I was talking to her for ages after on Facebook. I offered to buy her 169 groceries and give her money.

199. In relation to the damage property charge forming part of the July 2022 offending, the offender described his “reappearance” in the same street as a “drunk coincidence”, while accepting that being “blackout drunk” was not an excuse: Most of those crimes I was blackout drunk. I was like two bottles of vodka deep. I know that’s 170 not an excuse, I take responsibility for that.

200. When pressed by the psychologist that it is odd that the offender would be in the same “random street” twice, the offender conceded that he cannot ask someone to believe it. 171 However, the offender stated that he knew “in [his] heart it’s true”.

201. Ultimately, the psychologist asked the offender what had changed in the last 12 months since his previous interview with her. The offender stated that he has “lots of maturity”, and that he understood himself “a lot better” and can emotionally connect with his crimes. The offender reported that it had bothered him that he had no remorse when he was 172 younger.

166 December 2023 PSR page 3. 167 Psychologist’s Report at [9.14]. 168 Psychologist’s Report at [9.15]. 169 Psychologist’s Report at [9.15]. 170 Unclear which crimes the offender was referring to, but most likely to be the July 2022 offending. 171 Psychologist’s Report at [9.14]. 172 Psychologist’s Report at [9.13].

202. I accept that the offender has in the past demonstrated somewhat limited remorse, nevertheless I also accept, on my analysis of the evidence that the offender has begun the process of evolving maturity and appreciating the importance and significance of remorse.

Conditional liberty

203. [Redacted]. Further, I note that when the offender committed the July 2022 offending, 173 the offender was also on bail for the June 2021 offences.

204. It is well established on the authorities that committing offences while on conditional liberty is an aggravating factor. As stated in R v Tran [1999] NSWCCA 109 at [15] by Wood CJ at CL: Betrayal of the opportunity for rehabilitation offered through probation or parole, or of provisional release on bail, is regarded very seriously and should here have been weighed against the respondent.

205. The fact that the offender was on conditional liberty at the time of the offences is an aggravating factor on sentence and I therefore take the conditional liberty into account as an aggravating factor on sentence.

206. The commission of offences on conditional liberty is a matter relevant to the determination of the appropriate punishment as it is an aggravating factor on sentence. It is not; however, as I have discussed earlier at [82], relevant to assessing the objective seriousness of an offence: R v Bandy [2018] ACTSC 261.

207. Relevantly, in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27], the Court stated the following: The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.

208. As a consequence, the NSW Court of Criminal Appeal has consistently made it “clear that while the fact an offender was on conditional liberty was relevant to the determination of the appropriate punishment”, it does not “bear on the objective seriousness of an offence”: Smith v The Queen [2011] NSWCCA 163 at [26].

209. I therefore take the breach of conditional liberty into account consistent with the authorities, that is an aggravating factor on sentence (and not a matter of objective

173 PTB page 43. seriousness as such). In other words, it is a relevant subjective and aggravating factor on sentence.

Intensive Correction Order Assessment Report

210. When this matter came before me for a bail hearing on 7 August 2024, I referred the offender for assessment for an ICO.

211. Regrettably, the offender failed to attend an interview for the ICOAR in August and 174 September 2024. A warrant for the offender was issued.

212. Upon the offender being arrested and remanded in the AMC in September 2024, Corrective Services attempted to interview the offender via AVL on 4 October 2024. The 175 offender declined to participate.

213. Unsurprisingly, the offender was stated to be unlikely to be able to comply with an ICO: It is noted [the offender] has been provided multiple opportunities to cooperate with the preparation of the Court ordered report. During the assessment period he made no attempt to contact this Service to schedule an interview, and as such it is considered he is unlikely 176 to comply with the strict conditions of an ICO.

214. Relevantly, the psychologist stated that the offender’s capacity to comply with a community-based order in a sustained manner is “highly questionable”: [The offender] has exhibited some ability to comply with a community-based order in 2024 given he has not criminally reoffended. However, his capacity to comply in a sustained manner is highly questionable. As a result of his neurodiversity and personality disorder, [the offender] is driven by his need for stimulation, which includes exaggerated aggression in response to small perceived slights. This can be complicated by his superficiality and manipulations causing frustration by those attempting to assist or police him, resulting in escalating conflicts which [the offender] then manages with substances and criminal behaviour. This pattern of functioning negatively impacts [the offender’s] ability to engage and interact with others, particularly those with authority and the ability to return him to custody. With the appropriate psychological intervention, his capacity in this area could be improved, however, 177 this would not be a short-term reality.

215. In my view, in light of this evidence the offender is clearly not suitable for an ICO at this time.

174 No-show ICOAR page 1. 175 No-show ICOAR pages 1-2. 176 No-show ICOAR page 2. 177 Psychologist’s Report at page 11. Criminal History

216. The offender has a not insignificant criminal history. Outside of the charges that are subject of this decision, the offender’s record includes the following convictions on his 178 adult criminal history: a) Aggravated dangerous driving. This offence occurred on 21 June 2021. The offender was convicted and sentenced to 6 months’ imprisonment on 11 November 2021. b) Unlicensed driving. This offence occurred on 21 June 2021. The offender was convicted and fined $350 for this offence on 11 November 2021. c) Destroy/damage property by joint commission. This offence occurred on 17 January 2022. The offender was convicted and sentenced to a rising of the Court and released pursuant to a two-year good behaviour order on 24 November 2023. d) Destroy/damage property by joint commission. This offence on 17 January 2022. The offender was convicted and sentenced to a rising of the Court. 179

217. It is well established on the authorities that an offender’s criminal history is relevant to show whether an offence is an uncharacteristic aberration, or whether the offender has manifested a continuing attitude of disobedience to the law, illuminating moral culpability: Kelly v Ashby [2015] ACTSC 346 at [38]. See also: Millard v The Queen [2016] ACTCA 180 14; 19 ACTLR 270 at [38].

218. The seminal observations of the majority of the High Court in Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 (at 477) are well known: [T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences…. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. (emphasis added)

178 This was confirmed with both counsel on 18 July 2025. 179 PWS at [49]. 180 PWS at [50].

219. The prosecution submitted that the offender has received terms of fulltime imprisonment and indeed has spent a substantial period of his young life incarcerated and that 181 therefore the offender has manifested a continuing attitude of disobedience to the law, and that the offender’s record would not entitle him to any leniency and a “strong need” 182 for specific deterrence.

220. In my view, the prosecution’s submission in this regard, lacks forensic nuance on the evidence. I underline as was noted by the psychologist, that the offender has committed no criminal offences beyond 30 July 2022, that is no further criminal offending beyond 183 the single charge arising from failing to attend bail on 7 August 2024. In my view, the lack of further criminal offending (beyond a bail charge) is a significant positive sentencing factor to be taken into account.

221. Importantly, the psychologist underlined that there was some “early indication” that the 184 offender’s rate of criminal activity may have slowed.

222. I will return to this part of the psychologist’s report later in my reasons, particularly in relation to the offender’s prospects of rehabilitation. This is important as while the attempts at drug rehabilitation have not been successful thus far, nevertheless it is no small matter that no further criminal offences have been committed since July 2022. The courts must encourage a decrease in recidivism. It is in the community’s interest; it is in the public interest no further crimes are committed by offenders.

Pleas of guilty

223. The offender entered pleas of guilty for the offences at different stages of the proceedings. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.

224. It is well established that the key consideration is the utilitarian value of the plea, that is, with the timing of the plea: Cranfield v The Queen [2018] ACTCA 3 at [36] (Murrell CJ, Elkaim and Wigney JJ) (Cranfield).

225. In Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [44] (Monfries) it was underlined that the ACT courts have adopted an approach to s 35 discounts that is similar

181 PWS at [52]. 182 PWS at [53]. 183 Psychologist’s Report at [9.7]. 184 Psychologist’s Report at [9.7]. to NSW. However, the ACT statutory scheme does differ from that of NSW: see R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [50].

226. The Court of Appeal in Cranfield referred to Monfries as to identifying the appropriate approach to discounts in this jurisdiction (at [37]): The discount is a question of discretion. This Court has, however, generally applied predictable discounts in different circumstances. This was said by Murrell CJ in Monfries v R [2014] ACTCA 46; 245 A Crim R 80 at [47]: The bare fact of a plea of guilty entered in the Supreme Court will usually attract a s 35 discount of 10–15%. A common sense approach to “utilitarian value”, the case law and the terms of s 35(2)(b) and s 35(5) of the Sentencing Act all support the importance of the timing of a plea to the assessment of an appropriate discount. A last-minute plea commonly attracts a discount of 10%. A plea entered (or firmly indicated) after committal and before a trial date has been set will usually result in a discount of more than 10% and, commonly, leads to a discount of 15%. Occasionally, a plea in the Supreme Court attracts a higher discount; it is always a matter in the discretion of the sentencing judge.

227. It is instructive to first set out the prosecution submissions in relation to each separate series of offending. In that regard, I note that counsel for the offender did not cavil with 185 the prosecution’s submissions, save for one matter.

June 2021 offending

228. As noted above, the offender pleaded guilty to the charges of riding motor vehicle without consent (CC2022/2682), attempted robbery (CC2022/10336) and common assault (CC2022/2681) on 2 February 2023.

229. Counsel for the prosecution noted that these pleas occurred after a number of listings of 186 the matter in the ACT Magistrates Court The prosecution conceded that, while the 187 pleas were not made at the earliest available opportunity, there is utilitarian value.

230. As the pleas of guilty were entered at the Magistrates Court, in my view, a discount of approximately 25% is appropriate.

June 2022 offending

231. The offender pleaded guilty to aggravated burglary by joint commission (CC2023/959) 188 and damage property by joint commission (SCCAN2023/378) on 12 October 2023.

185 OWS at [6]. 186 PWS at [56]. 187 PWS at [57]. 188 See PTB page 2.

232. The prosecution noted that the trial for the June 2022 offending was due to commence on 31 October 2023, and the prosecution tender bundle noted that the pleas were made 189 at the same time as an election for a trial by judge alone. The prosecution submitted 190 that the pleas should accordingly be considered “last-minute”.

233. In my view, a discount of approximately 10% is appropriate in relation to these charges.

234. There is, of course, no discount to be applied for the assault occasioning actual bodily harm charge (CC2023/962), for which Berman AJ found the offender guilty on 2 November 2023.

July 2022 offending

235. The offender pleaded guilty to the damage property charge (CC2022/7386) on 21 August 191 2023, which was to be the first day of the trial. The prosecution submitted that this plea 192 should accordingly be considered to be “last minute”.

236. In my view, a discount of approximately 10% is appropriate in relation to this charge.

237. As noted by the prosecution, pleas were entered for the other six charges earlier on 2 February 2023: a) Failing to stop for police as a repeat offender (CC2022/7389). b) Aggravated dangerous driving (CC2022/7390). c) Driving motor vehicle without consent (CC2022/10061). 193 d) Driving motor vehicle with level 3 PCA as a repeat offender (CC2022/7391). e) Driving whilst disqualified (CC2022/7393). f) Failing to give particulars as a driver involved in crash (CC2022/7392). This is a fine-only offence and may be put to one side for the purposes of this discussion.

189 PTB page 2. 190 PWS at [60]. 191 PWS at [61]-[62]. 192 PWS at [63]. 193 I note that the offender initially entered a plea of guilty to the charge which included reference to the offender as a ‘special’ driver for the purpose of this legislation. However, at the sentence hearing in this matter on 18 July 2025, the charge was amended so as to have the reference to the offender as a ‘special’ driver removed. The charge was therefore amended by the Court on the proposal of counsel for the offender, with the consent of both parties.

238. Pleas were entered after a significant number of listings for mention in the ACT 194 Magistrates Court.

239. Counsel for the prosecution in written submissions submitted that there should not be any significant reduction on account of the pleas for the traffic related offending as the prosecution’s case was “overwhelmingly strong”: Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) s 35(4). The prosecution noted the following two features: a) The offending is visually recorded. As such, this was submitted to not be a situation where the prosecution would have required the oral evidence of witnesses to establish the facts of the matter; all elements of the offences are made out through various visual recordings. b) The identity of the offender is established when the vehicle he was driving eventually gave out, with the offender being apprehended by police from the driver’s seat shortly thereafter. 195

240. As such, the prosecution submitted that the case here was “overwhelming”. However, the prosecution properly conceded that does not preclude the Court from nevertheless nominating a “limited discount” for the guilty plea: DPP v Jesse Draper (a pseudonym) [2023] ACTSC 109 at [37]; R v Newby [2022] ACTCA 20 at [49].

241. In my view a discount of 25% would have been appropriate in light of the entry of the pleas in the Magistrates Court. In light of the operation of s 35(4) of the Sentencing Act, a discount of 15% is therefore now appropriate.

Conclusion on guilty plea discounts

242. Taking into account all the relevant matters, in my view, the following discounts are appropriate: a) A discount of approximately 25% for the three counts constituting the June 2021 offending as the pleas were entered in the Magistrates Court: See Blundell v The Queen [2019] ACTCA 34 at [6]. b) A discount of approximately 10% for counts CC2023/959 and SCCAN2023/378 of the June 2022 offending.

194 PWS at [65]. 195 PWS at [67]. c) A discount of approximately 10% for count CC2022/7386 of the July 2022 offending. d) A discount of approximately 15% for the “traffic related” counts CC2022/7389, CC2022/7390, CC2022/10061, CC2022/7391 and CC2022/7393 of the July 2022 offending.

Time in custody

243. The offender has spent significant time in custody due to the current offences. However, this period was punctuated by the grants of bail in 2024. In total, to this point the offender has spent 916 days in custody on account of the charges considered in this sentence, and 11 days in custody on account of the breach matters.

244. Counsel for the offender noted that the period between the offender’s initial arrest and the first sentence hearing in December 2023 (approximately 508 days) was already the 196 offender’s longest period of continual custody.

245. A further consideration in relation to time in custody is the time the offender spent in drug 197 rehabilitation while on bail. As submitted by counsel for the offender, the recognition of time spent by an offender in residential rehabilitation is a regular practice in this 198 jurisdiction. In R v Eyles (No 3) [2017] ACTSC 1, Refshauge ACJ stated the following at [103]: This Court also regularly recognises that time spent in specialist residential drug rehabilitation and other confinement, can be wholly or partly taken into account. See R v Elphick (No 2) at [86]-[90].

246. Further, in Stott v The Queen [2021] ACTCA 18 (Murrell CJ; Mossop J; Loukas-Karlsson J) the Court of Appeal addressed how onerous bail conditions may be considered in a sentencing exercise: Nevertheless, it is well established that a sentencing judge may take into account that an offender has been subject to onerous bail conditions, often characterised as “quasi-custody”, and exercise their discretion to backdate or discount a sentence on that basis: R v Cartwright (1989) 17 NSWLR 243 (Cartwright) per Hunt and Badgery-Parker JJ at 258– 9 (Mahoney JA agreeing), R v Webb [2004] NSWCCA 330; 149 A Crim R 167 at [18], Hoskins v The Queen [2016] NSWCCA 157 (Hoskins) at [36], Banat v The

196 OWS at [5]. 197 The offender attended Wayback Rehabilitation Services (residential) from 6 March 2024 to 28 March 2024 (22 days) and then Canberra Recovery Services (residential) from 29 April 2024 to 11 June 2024. The offender then continued to attend the Canberra Recovery Services day program from 13 June 2024 to 23 September 2024. 198 The offender’s submissions on this point were provided to chambers by email on 9 July 2025 at the request of chambers. Queen [2020] NSWCCA 321 (Banat) at [18]. Where an offender has spent a significant period in a residential rehabilitation facility, that period is often taken into account by way of reduction of the sentence: R v Delaney [2003] NSWCCA 342; 59 NSWLR 1 at [19]–[26] per James J (Santow JA agreeing).

247. Consideration must then be given to exactly how this period is to be treated, in comparison to full time custody. In this regard, I note the remarks of Berman AJ in R v McConnell-Imbriotis [2024] ACTSC 319 at [38], where it was stated that there is “no magical mathematical formula” available to compare forms of quasi-custody with full-time custody for the purposes of a reduction on sentence.

248. Counsel for the offender conceded, correctly in my view, that no credit on sentence is to be given to the offender for time spent in ‘day program’ rehabilitation, rather than residential rehabilitation. The day program was the service that the offender engaged in for the longest period, being 102 days during the time spent on bail.

249. In relation to residential rehabilitation, counsel for the offender submitted that there is a distinction to be made between the two residential programs attended by the offender over two separate periods, being first the Wayback Rehabilitation Services from 6 March 2024 to 28 March 2024 (22 days) and then Canberra Recovery Services from 29 April 2024 to 11 June 2024 (43 days). In this regard, counsel for the offender identified the difference in rigour between the two programs, noting that in his submission, a full day spent in rehabilitation at Wayback Rehabilitation Services should be treated as a half day for the purposes of credit on sentence, while a day at Canberra Recovery Services should be treated as between three-quarters to a full day for the purposes of credit on sentence.

250. On the evidence and on my consideration of the relative rigour of the two distinct rehabilitation programs, I accept the submissions of counsel for the offender. I underline that the prosecution properly did not cavil with the submissions of counsel for the 199 offender on this topic. Accordingly, in sentencing, I will credit an additional 54 days of time in custody on account of the offender’s time spent in residential rehabilitation (being 11 days for time at Wayback Rehabilitation Services, and 43 days for time at Canberra Recovery Services).

199 I note, counsel for the prosecution advised agreement with the submissions of counsel for the offender on 14 July 2025 via email.

251. Given this, the total time in pre-sentence custody for both the subject offending and the 200 breach offending is 981 days. Accordingly, I will backdate the offender’s sentence to commence on 16 November 2022.

Comparable cases

252. It is well established that sentencing statistics may only provide very limited assistance: R v Pham [2015] HCA 39; 256 CLR 550 as statistics do not provide information about why sentences were fixed as they were in a specific case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] (Dalgliesh): [C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.

253. Furthermore, considerable caution needs to be exercised regarding previous sentencing cases: Dalgleish at [49]-[57]; Millard v The Queen [2020] ACTCA 20 at [33].

254. The following cases from this jurisdiction may provide a “yardstick” in relation to this sentencing exercise: Hili at [53]-[54].

255. The prosecution referred to the following cases involving robbery and aggravated burglary by way of a summary table: (a) DPP v CR (a pseudonym) [2023] ACTSC 293. (b) R v Minnis [2014] ACTSC 268 (Minnis). (c) R v Andy [2022] ACTSC 54. (d) R v Lindley-Jones [2014] ACTSC 296.

256. Attached as ‘Annexure A’ to this judgment is a summary table of these cases. I take into account the comparable cases to the extent possible, considering the differences that perforce must exist in every individual case that comes before the Court as a matter of individualised sentencing. Individualised sentencing is at the core of sentencing law and at the core of individualised sentencing of offenders.

200 This figure (981 days) was confirmed by both counsel on 18 July 2025, as at page 12-14 of the transcript of that date.

257. This is the full extent of the comparable cases proffered by the prosecution and counsel for the offender.

Parity 201

258. As noted by the prosecution, in relation to the July 2022 offending, there was a young person who was the co-offender in relation to the damage property (CC2022/7386) 202 charge. The young person pleaded guilty at the first mention in the ACT Children’s 203 Court, and the charge was dismissed with a non-conviction order: Sentencing Act s 17.

259. The Court of Appeal in Thompson v The Queen [2018] ACTCA 2 at [24] stated the following: [J]ust as equal justice requires that like offenders should be treated alike, relevant differences should also be acknowledged: Postiglione v The Queen (1997) 189 CLR 295, 301–2 (Postiglione) per Dawson and Gaudron JJ. This approach to parity has been applied by this Court in many cases, including Singh v The Queen [2017] ACTCA 17 at [74], Rubino v The Queen [2015] ACTCA 22 at [26]–[27] and Le Clair v The Queen [2017] ACTCA 19 at [48].

260. The principles in relation to parity in sentencing co-offenders are well known. Unjustifiable disparity is an infringement of the equal justice norm: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [32], Lowe v The Queen [1984] HCA 46; 154 CLR 606;, and Petterson v The Queen [2013] NSWCCA 133 at [43].

261. The prosecution correctly submitted that the sentencing task for the offender is “significantly different”. The co-offender was a young person (only seventeen years old), 204 had no criminal history, and had strong prospects of rehabilitation.

262. In sentencing the offender, I take into account the principles of parity in accordance with the authorities outlined above concerning the damage property charge and note the different factors pertaining to the offender as set out above. [Paragraphs 263 to 268 redacted]

Application of Bugmy principles

269. In Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy), the High Court highlighted that where an offender has been raised surrounded by alcohol abuse (or by extension drug abuse), violence and generational disadvantage such circumstances may mitigate the sentence because the moral culpability of the offender is likely to be

201 PWS at [73]. 202 See July Statement of Facts at [45]; PTB cover page, 5. 203 July Statement of Facts at [45]; PWS at [74]. 204 PWS at [75]. less than the culpability of an offender whose formative years have not been marred in that way: at [40]. Further, the High Court stated that the effects of profound deprivation do not diminish over time and should be given “full weight” in determining the sentence in every case: Bugmy [42]-[43]. A background of that kind may leave a mark on a person throughout life and compromise the person’s capacity to mature and learn from experience. It remains relevant even where there has been a long history of offending: at [43]. Attributing “full weight” in every case is not to suggest that it has the same (mitigatory) relevance for all the purposes of punishment: Bugmy at [43]. Social deprivation may impact on those purposes in different ways. The High Court in Bugmy went on to elaborate at [44]-[45]: An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

270. In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy [41]-[44]. What is clear from Bugmy, and subsequent case law, is that: (a) the effects of disadvantage and deprivation do not diminish with the passage of time: Bugmy at [44]; (b) the Bugmy principles do not diminish in relevance where an offender has an existing criminal record: Bugmy at [44] and R v Irwin [2019] NSWCCA 133 at [3] (Irwin); and (c) the application of the Bugmy principles is not discretionary: Irwin at [3]. 205

271. Counsel for the offender properly relied on these principles, and submitted that Bugmy factors are enlivened in this case. Counsel for the offender highlighted the following features of the offender’s subjective circumstances. On the evidence I accept the following matters: [Redacted]

272. I further note that divergent views have been expressed as to whether an offender should demonstrate a causal link between the disadvantaged background and the specific offending on the issue of moral culpability. The High Court in Bugmy did not require such a causal link: See R v Hagen [2022] ACTSC 362 at [40]. See also DPP v Herrmann

205 OWS at [4]. [2021] VSCA 160; 290 A Crim R 110 at [4] and Paterson v R [2021] NSWCCA 273 at [29], per Beech-Jones CJ at CL (R A Hulme and N Adams JJ agreeing). In my view, the offender’s moral culpability is reduced based on the extensive evidence before me in the offender’s case. This results from the application of the law concerning the approach to this issue discussed in the authorities above. In my view, the offender’s moral culpability is reduced based on the extensive evidence before me in the offender’s case. This moderation results from the application of the law concerning the approach to this issue discussed above. Such moderation in this case is appropriate despite balancing the countervailing factor of specific deterrence alongside prospects for rehabilitation: see DPP v Tony Bravo (a pseudonym) [2024] ACTSC 221 at [268]-[292]. Significant moderation is called for in this case as further discussed below. [Paragraphs 273 to 277 redacted]

278. The prosecution properly and correctly conceded that the Bugmy principles are applicable in this case as the offender has suffered from a background of disadvantage, 206 trauma, and neglect.

279. There is no doubt on the evidence before me that the offender has experienced significant childhood disadvantage, and it is appropriate that I take this into account on sentence, in the manner set out in Bugmy as outlined above at [269] and [272].

Statutory and other relevant considerations

280. In sentencing the offender, the court is required to take into account matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.

281. The court sentences in the context of the objects of the Sentencing Act in s 6 and the purposes of sentencing set out in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation are all important sentencing considerations relevant to the consideration of sentencing of the offender in this case.

282. In considering the offence of aggravated burglary I note the observations I made in R v Salcedo: R v Stretton (No 3) [2018] ACTSC 305 at [117] as to the serious nature of aggravated burglaries that are often referred to as home invasions, quoting to Hogarth v The Queen [2012] VSCA 302; 37 VR 658:

206 PWS at [70]. Home invasion is a particularly nasty form of criminal conduct. Typically, a home invasion involves multiple offenders entering a person's home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong. The entry of the offenders – acting in anger and often fuelled by alcohol – is itself a terrifying experience for the householders, irrespective of what may occur after entry.

283. In Minnis, Murrell CJ observed, and I agree, that home invasions “are abhorred by the community and it is important to send a strong message in relation to the unacceptability of such conduct”: Minnis at [20].

284. As with every sentencing exercise, attention must be paid in sentencing to the maximum penalties, which provide a relevant yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.

285. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, in my view it is clear that an alternative to full-time custody is not appropriate taking into account the number and seriousness of the offences alongside the recent PSR and the psychological report concerning the progress as to drug rehabilitation.

Rehabilitation

286. Rehabilitation is an important consideration in this matter, particular having regard to the offender’s relative youth. As stated by French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32], rehabilitation is important to ongoing community protection and is therefore in the public interest.

287. An assessment using the LSI-R assessment tool by the author of the December 2023 207 PSR assessed the offender as a having a “high risk” of reoffending. The author of the report was of the view that the offender will need to participate in a residential rehabilitation AOD program, and engage with mental health and appropriate counselling supports to address his childhood trauma to reduce his risk factor. The author was of the view that, if the offender engaged meaningfully with such support, his risk of reoffending 208 may “reduce” over time.

288. The prosecution fairly noted that the offender remains a young person, and as such the sentencing principle of rehabilitation is important. Further, the prosecution also submitted

207 December 2023 PSR page 4. 208 December 2023 PSR page 4. that the weight to be afforded to consideration of youth does not vary in accordance with 209 the seriousness of the offending: R v TL [2017] ACTCA 18 at [39]-[40].

289. Counsel for the offender highlighted that the offender is relatively young, being only 22 210 years of age. I note the seminal and achingly forensically astute observations of Hodgson JA (Rothman J agreeing) in BP v R [2010] NSWCCA 159; 201 A Crim R 379 at [4]-[5] regarding the relevance of the level of emotional maturity and understanding (or lack thereof) in young offenders. Maturity may not be fully developed until the mid- 20’s: … statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person’s less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v The Queen [2008] NSWCCA 158 at [33]-[36]. … while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity, and that a “child offender” of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987 (NSW). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v E (2006) 68 NSWLR 1; 164 A Crim R 208 at [127]. As shown by R v Hearne (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime. (emphasis added)

290. In this regard, I note the offender’s ultimately unsuccessful attempts in completing drug rehabilitation in 2024. Nevertheless, as has often been stated the path from drug addiction to long term rehabilitation is not linear. It is well known based on the longstanding experience of the Courts to be non-linear. Drug rehabilitation is not necessarily a logical step by step process. It is built on continuous growth and unsurprisingly encompasses experiencing setbacks alongside learning from experience and evolving maturity. That is the reality of drug rehabilitation.

291. The psychologist’s report stated that the documentation suggested the offender was enrolled in Wayback on 11 March 2024 and was discharged on 26 March 2024 for non-

209 PWS at [69]. 210 See OWS at [3] (offender was 20 years old when the matter was first heard, born on 2 June 2003). The offender turned 22 on 2 June 2025. engagement. The psychologist noted that a file note suggests that the offender was not 211 in a “structured environment” in the program. This offender clearly requires a structured environment. This will be important on parole as the offender must at some point leave custody after serving an appropriate and proportionate sentence.

292. To the psychologist, the offender expressed some level of pride in that this was the first time he was in custody with no fresh charges, crediting his lawyers and the Court for 212 allowing him to access rehabilitation and to spend time with his mother. As I have discussed earlier in this judgment, it is to this offender’s credit that there have been no further serious criminal offending for 3 years but for a failure to appear at Court.

293. The psychologist reported the results of two tests that measured the offender’s likelihood of reoffending. First, the psychologist applied a “VRAG-R” as a structured clinical judgment tool. The psychologist described the “VRAG-R” as assessing “static risk factors” in an individual’s life history and producing a percentage to indicate the proportion of violent offenders who received that score reoffending within the first five years in the community. The psychologist noted that the test had a predictive validity of 213 about 66%. Based on the offender’s history, the offender received an overall score of 36 (category nine). In the psychologist’s assessment, this score suggested that there 214 was a 76% likelihood of the offender reoffending within the next five years.

294. Second, the psychologist used the Historical-Clinical-Risk Management-20 (HCR-20) tool. The psychologist noted that this is the most frequently used structured professional 215 judgment tool for predicting risk of violence over six to 12 months, with 74% accuracy. the psychologist described the test as follows: In administering this tool, the clinician assesses the likelihood of violence, the level of anticipated violence and the effort required for rehabilitation in determining the outcome of Low, Moderate or High risk.

295. The psychologist’s report noted that, in terms of the “Historical (past static) factor” that 216 impacted on the offender’s likelihood of reoffending, the offender has [redacted]. The psychologist’s report relevantly noted that the offender also has a history of attitudes which condone violence and criminal activity that “meets his needs for stimulation”, and

211 Psychologist’s Report at [7.9]. 212 Psychologist’s Report at [9.11]. 213 Psychologist’s Report at [10.3]. 214 Psychologist’s Report at [10.4]. 215 Psychologist’s Report at [10.5]. 216 See Psychologist’s Report at [10.5] that his “later” attitude “focused on the faults of other” and “do not completely eradicate 217 his early beliefs”, with minimal history of intervention or response.

296. As such, the psychologist concluded that the offender requires a “high level” of intervention to reduce the risk of violent recidivism based on his historical functioning: Assessment of [the offender]’s historical functioning suggests that he requires a High level of intervention to reduce his risk of violent recidivism. This is in line with his current circumstances, criminal history, substance use and personality disorder. [The offender] requires intervention with a highly experienced Forensic Psychologist; his personality disorder is only recently finding some successful intervention with an adapted schema 218 therapy for this population.

297. The psychologist reported that, in terms of “clinical (present dynamic) scale” items, the offender relevantly presented with some “developing insights into his psychological function and need for intervention”, but that the offender has demonstrated that he “continues to be highly unstable” in terms of “affective, behaviour and cognitive functioning” that inhibits the offender’s ability to comply and respond to treatment and/or 219 supervision.

298. The psychologist also expressed the following nuanced observations regarding the offender’s attitude towards rehabilitation in discussing this matter: [The offender] has historically demonstrated interest in intervention that required no effort from himself, however, his sustained engagement with rehabilitation in 2024 shows some promise. As an element of his personality traits, [the offender] is likely to be drawn to interventions that focus intently on himself, and this may provide some avenue for adjusting 220 his criminogenic attitudes and needs.

299. Finally, the psychologist’s report also noted the offender having “high needs of 221 intervention” based on his “future dynamic risk variables”. I take this requirement into account in sentencing.

300. The psychologist also stated that the offender’s risk of reoffending, ultimately, is “high” and will remain so based on his personality disorder and criminal history, without any 222 psychological intervention: [The offender]’s risk of reoffending is High and will remain so based on his personality disorder and criminal history. He may experience periods of non-offending where he finds his needs for emotional and intellectual stimulation met by his life circumstances. However,

217 Psychologist’s Report at [10.8]. 218 Psychologist’s Report at [10.8]. 219 Psychologist’s Report at [10.10]. 220 Psychologist’s Report at [10.9]. 221 Psychologist’s Report at [10.11]. 222 Psychologist’s Report page 11. without psychological intervention, he will remain at a high risk of substance use and criminality in response to small stressors and perceived slights. (emphasis added).

301. Ultimately, the psychologist expressed a rather guarded opinion on the offender’s potential response to rehabilitation without psychological intervention: [The offender] has expressed some pride that he has returned to custody [most recently] “without fresh [criminal] charges.” [The offender] has engaged with a second rehabilitation program for half of the recommended period, exiting between the allowed for points due to conflict with staff. [The offender] was able to maintain abstinence until he again felt unfairly judged/treated by others, and then disregarded all conditions upon him. Given his personality disorder, it is more than likely that [the offender] will have difficulty with any rehabilitation program without specific intervention with a Forensic Psychologist occurring initially. It is unclear whether [the offender] will have sufficient resources to engage with this intervention, or willingness to consistently attend. Effectively, [the offender] has completed his recent rehabilitation and community orders as well as he is 223 able to without this psychological intervention (emphasis added)

302. On the evidence, as outlined above, the offender’s prospects for rehabilitation are guarded and remain guarded. Quite obviously on the evidence referred to above require significant psychological intervention both in custody and on parole.

303. Nevertheless, it is of significance, in my view, and worthy of repetition in this judgment, that the offender while not having successfully completed drug rehabilitation has during the relevant period not committed further criminal offences. That does speak to a level of rehabilitation from criminal offending that should not be disregarded and should be 224 given appropriate weight in this sentencing exercise on the clear facts of this case.

Institutionalisation

304. Institutionalisation is an issue in this case. I have previously made the following observations in R v Goolagong (No 2) [2021] ACTSC 131 at [141] (Goolagong) concerning institutionalisation and the relevance of a longer parole period when considering the balance between a non-parole and parole period. In my view the balance between parole and non-parole period is important in sentencing the offender. The question of institutionalisation is also relevant. Institutionalisation has been discussed in a number of decisions in NSW in the context of the necessity for a longer parole period and a finding of special circumstances: see Jackson v R [2010] NSWCCA 162 at [24]; Jinnette v

223 Psychologist’s Report at [11.1]. 224 Noting the failure to appear charge is the only relevant charge. R [2012] NSWCCA 217 (Jinnette v R) at [98]; [103]; Dyer v R [2011] NSWCCA 185 at [50]. The Courts have made it clear that if institutionalisation has already occurred, the focus may be on ensuring that there is a sufficient period of conditional and supervised liberty to ensure protection of the community and to minimise the chance of recidivism: Jinnette v R at [103]. See also R v Murphy [2021] ACTSC 94 at [73] (Murphy).

305. Counsel for the offender properly noted matters regarding the likelihood of institutionalisation for this young offender. I take this into account. I have discussed the relevant principles in R v Garay (No 4) [2022] ACTSC 138 at [207] to [212], being that severity of a sentence is not simply the product of a linear relationship and that the principle of totality has developed, in part, to avoid a court imposing a crushing sentence. Therefore, the sentence should not be crushing taking into account the still relatively young age of the offender and time already spent in gaol alongside the very real need for significant psychological intervention and treatment on parole.

Totality and Concurrency

306. There are multiple offences that I must sentence for in this case. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64]. In doing so, I must ensure that the aggregation of the sentences for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 307-308, Mill v The Queen [1988] HCA 70; 166 CLR 59 at [8] (Mill) Pearce v The Queen [1998] HCA 57; 194 CLR 610 (Pearce) and Regina v XX [2009] NSWCCA 115; 195 A Crim R 38.

307. In relation to concurrency, I refer to the following passage from O’Brien v The Queen [2015] ACTCA 47 at [26] (O’Brien), citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 at [27]: [W]here offences are not separate and distinct but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.

308. In R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 at [92], the Court of Appeal (Loukas-Karlsson, Kennett and Abraham JJ) usefully summarised the following observations concerning totality: (a) There is no single correct approach to the structuring of multiple sentences, and the totality principle can be implemented in a variety of acceptable ways: Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19 at [56]. (b) In determining questions of accumulation or concurrence, a court is required to look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill. (c) A sentence should not be “crushing” in that it induces a sense of hopelessness and destroys prospects of rehabilitation, or too severe as a result or accumulation (noting the severity of a sentence may increase at a greater rate than the increase in its length): R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [16]-[17]. (d) Against these considerations, a sentence should not lead to a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences, or that an offender is being offered a discount for multiple offending: O’Brien at [26](c); DPP v Krutsky (No 2) [2024] ACTSC 120 at [145]; and R v MAK [2006] NSWCCA 381;167 A Crim R 159. (e) Making two counts wholly concurrent may reveal error in that to do so fails to take account of the differences in the conduct which were the subject of punishment on each count: Pearce at [49] (McHugh, Hayne and Callinan JJ).

309. The prosecution submitted that it is appropriate for a degree of concurrency to exist between the sentences imposed for the June 2021, June 2022 and July 2022 225 offending. I agree on the evidence. Nevertheless, the prosecution correctly submitted that a degree of accumulation is also appropriate to recognise the harm done to 226 individual victims, and acknowledgment that there are distinct incidents. I agree that is appropriate on the evidence in this case. [Paragraphs 310 to 313 redacted]

Non-parole period

314. I am required to set a non-parole period if I impose sentences of imprisonment for a term 227 of imprisonment that total 1 year or longer: Sentencing Act ss 64, 65(1)-(2). It is also, open to this Court to recommend conditions for the offender’s parole: Sentencing Act s 97. I propose to do so in this case in light of the evident need for ongoing and significant psychological intervention and drug rehabilitation for this offender on parole.

225 PWS at [92]. 226 PWS at [93]. 227 PWS at [98](a).

315. The principles concerning setting a non-parole period are well-established. See Taylor v The Queen [2014] ACTCA 9 at [19] (Murrell CJ): The proper approach to fixing a non-period is well established and can be summarised as follows. 1. A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender‘s subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 627–628, Deakin v The Queen (1984) 11 A Crim R 88 at 89, Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 615, Bugmy v The Queen (1990) 169 CLR 525 (Bugmy) at 536. 2. An offender‘s prospects of rehabilitation are important to the fixing of the non-parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy at 531–532. 3. The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula: Inge v The Queen (1999) 199 CLR 295 (Inge) per Kirby J at 316. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion: Lowe at 610, 620 and 625. 4. Ordinarily, the non-parole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. In this court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the court declined to disturb a non-parole period that was 70% of the total sentence: Drayton v The Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an “available range“ for non-parole periods… My specific setting of the non-parole period arises from ensuring that the minimum period of imprisonment that justice requires to be served, is served. Clearly during the parole period, this offender will require an intensive multidisciplinary therapeutic regime. The question of grant of parole will be a matter for the Sentence 228 Administration Board. I note the documents tendered on the day of sentence. [Paragraph 316 redacted]

Cancellation of good behaviour order [Paragraph 317 redacted]

228 The documents tendered were a letter of Ms De Beer dated 24 July 2023, a letter of Ms Popielczyk dated 19 June 2025, a statement of attainment in relation to provide responsible gambling services of 18 October 2024, certificate of the Kros insight short course program of 2 December 2024, and a module completion sheet for the Inside Out program of 16 July 2025.

318. Given the differing nature of the good behaviour orders in force in this case, it is convenient to divide the discussion into two sections.

Good Behaviour Orders with Suspended Sentence [Paragraph 319 redacted]

320. A court in these circumstances must cancel the good behaviour order and either impose the suspended sentence or resentence the offender under s 110(1)-(2) of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act).

321. Further, there is no presumption in favour of reimposing a suspended sentence: Guy v Anderson and Telford [2013] ACTSC 5 at [83]-[87] (Refshauge J) (Guy). However, the prosecution noted that a failure of the courts to act where there has been a clear breach of the bond by which the offender avoided being imprisoned is likely to bring suspended 229 sentences into disrespect: see Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 at [23]. 230

322. If this Court decides to resentence, however, the prosecution submitted that a resentence is to be conducted under the same terms as an original sentence: Sentence Administration Act s 110(4); R v Beniamini (No 2) [2017] ACTSC 32 at [52] (Refshauge J). The prosecution submitted that the Court should possess all relevant information, 231 including the material of the original proceedings : see, in obiter, Gyory v The Queen [2012] ACTCA 28 at [10] (Rares J). Similarly, the Court should also be appraised of information concerning the offender since: Guy at [85]-[86] (Refshauge J). I am appraised of both in this case.

323. If there is a resentence, the prosecution submitted that the Court should ordinarily impose a more severe sentence, given that a breach of a good behaviour order shows that the trust reposed in an offender has been eroded: R v Ogilvie (No 2) [2016] ACTSC 265 at [30] (Refshauge J). However, the prosecution properly conceded that the Court can impose the same sentence in an appropriate case: R v Curtis (No 2) [2016] ACTSC 232 34 at [16] (Refshauge J). In my view this is an appropriate case taking into account the risk of institutionalisation discussed earlier at [304] to [305].

229 PWS at [78]. 230 PWS at [80]. 231 See PWS at [81]-[82]. 232 PWS at [83]. [Paragraphs 324 to 338 redacted]

Good behaviour order without a suspended sentence 339․ [Redacted]. The relevant actions that the Court may take are set out in s 108(1)-(3) of the Sentence Administration Act, which I reproduce below: 108 Court powers—breach of good behaviour obligations (1) This section applies if— (a) a court is satisfied an offender has breached any of the offender’s good behaviour obligations; and (b) section 110 (Cancellation of good behaviour order with suspended sentence order) does not apply to the offender’s good behaviour order. (2) The court may do 1 or more of the following: (a) take no further action; (b) give the offender a warning about the need to comply with the offender’s good behaviour obligations; (c) give the director-general directions about the offender’s supervision; (d) amend the good behaviour order; (e) if the offender has given security under the order— (i) order payment of the security to be enforced; and (ii) order the good behaviour order to be cancelled on payment of the security (if the term of the order has not already ended); (f) cancel the order. Examples for par (d) impose or amend an additional condition of the order, or amend the term of the order

(3) If the court cancels the good behaviour order, the court must— (a) if section 109 applies to the offender’s good behaviour order—deal with the 233 offender under that section; or (b) in any other case—re-sentence the offender for the offence for which the good behaviour order was made (the relevant offence).

340․ A resentencing exercise is conducted under the same terms as the original sentence. The Court should possess all relevant previous evidence and be appraised of up to date 234 information concerning the offender since that time.

341․ In this case, the prosecution noted in its written submissions that it would be appropriate for the Court to either cancel the good behaviour orders and resentence the offender or 235 alternatively simply take no further action. Counsel for the prosecution noted in written

233 This only applies if the good behaviour order was made under s 17 of the Sentencing Act (Non-conviction orders). 234 PWS at [88]. 235 PWS at [89]. submissions that the appropriateness of both options are dependent on how the Court approaches the sentence exercise for the fresh offending and the breach of other good 236 behaviour orders with suspended sentences.

342․ In contrast, counsel for the offender submitted that the appropriate course in relation to 237 these orders is to take no further action given the “future orders that are to be made”. In counsel’s submissions, there is no utility in resentencing other than noting the existence of the good behaviour orders at the time of the offending as an aggravating 238 factor. I accept the submissions of counsel for the offender in this regard. It is appropriate concerning the good behaviour orders without an attached suspended sentence to take no further action.

343․ In my view, the appropriate course taking into account the submissions I have reviewed and the evidence in this case is to note the existence of the good behaviour orders at the time of the offending and as I have discussed earlier in this judgment, refer to the aggravating factor on sentence for the later offences.

Sentence 344․ It must be recognised by the Court that the offences committed against the victims have had a serious and significant impact upon all the victims. Both the short and long-term consequences of being a victim of these offences must be acknowledged and is acknowledged by this Court.

345․ In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and subjective matters relevant to the offender.

346․ Firstly, in relation to the matters of the breach of good behaviour orders with suspended sentences, I impose the following sentences (noting that this mirrors the previous sentencing structure): [Redacted]

347․ The appropriate sentence for attempted robbery (CC2022/10336), contrary to s 309 of the Criminal Code by virtue of s 44 is 19 months imprisonment, reduced to 14 months and 7 days’ imprisonment in accordance with the 25% discount on account of the plea

236 PWS at [90]. 237 OWS at [20]. 238 OWS at [20]. of guilty. The sentence for this offence will commence on 16 April 2024 and expire on 22 June 2025.

348․ The appropriate sentence for riding a motor vehicle without consent (CC2022/2682), contrary to s 318(2) of the Criminal Code is 6 months’ imprisonment, reduced to 4 and a half months’ imprisonment in accordance with the 25% discount on account of the plea of guilty. The sentence for this offence will commence on 16 April 2024 and expire on 30 August 2024.

349․ The appropriate sentence for common assault (CC2022/2681), contrary to s 26 of the Crimes Act is 8 months imprisonment, reduced to 6 months imprisonment in accordance with the 25% discount on account of the plea of guilty. The sentence for this offence will commence on 16 April 2024 and expire on 15 October 2024.

350․ The appropriate sentence for aggravated burglary by joint commission (CC2023/959), contrary to s 312 of the Criminal Code by virtue of s 45A is 44 months’ imprisonment, reduced to 39 months and 18 days’ imprisonment in accordance with the approximately 10% discount on account of the plea of guilty. The sentence for this offence will commence on 23 April 2025 and expire on 9 August 2028.

351․ The appropriate sentence for damage property by joint commission (SCCAN2023/378), contrary to s 403 of the Criminal Code by virtue of s 45A of same is 9 months’ imprisonment, reduced to 8 months and 3 days’ imprisonment in accordance with the approximately 10% discount on account of the plea of guilty. The sentence for this offence will commence on 23 April 2025 and expire on 25 December 2025.

352․ The appropriate sentence for assault occasioning actual bodily harm by joint commission (CC2023/962), contrary to s 24(1) of the Crimes Act by virtue of s 45A of the Criminal Code is 14 months’ imprisonment. This charge was the subject of the judge alone trial by Berman AJ, and so accordingly there is no discount to be applied. The sentence for this offence will commence on 23 April 2025 and expire on 22 June 2025.

353․ The appropriate sentence for aggravated dangerous driving (CC2022/7390), contrary to s 7(1) of the RTSM Act aggravated by virtue of ss 7A(1)(a)(i) and 7A(2) is 14 months’ imprisonment, reduced to 11 months and 27 days’ imprisonment in accordance with the approximately 15% discount on account of the plea of guilty. The sentence for this offence will commence on 10 April 2028 and expire on 5 April 2029.

354․ The appropriate sentence for failing to stop motor vehicle for police (CC2022/7389), contrary to s 5C of the RTSM Act is 10 months’ imprisonment, reduced to 8 months and 15 days’ imprisonment in accordance with the approximately 15% discount on account of the plea of guilty. The sentence for this offence will commence on 25 November 2027 and expire on 8 August 2028.

355․ The appropriate sentence for driving a motor vehicle without consent 239 (CC2022/10061), contrary to s 318(2) of the Criminal Code is 8 months’ imprisonment, reduced to 6 months and 24 days’ imprisonment in accordance with the approximately 15% discount on account of the plea of guilty. The sentence for this offence will commence on 25 November 2027 and expire on 17 June 2028.

356․ The appropriate sentence for damaging property by joint commission (CC2022/7386), contrary to s 403 of the Criminal Code by virtue of s 45A of same is 12 months’ imprisonment, reduced to 10 months and 5 days’ imprisonment in accordance with the approximately 15% discount on account of the plea of guilty. The sentence for this offence will commence on 25 November 2027 and expire on 29 September 2028.

357․ The appropriate sentence for driving a motor vehicle with a level 3 prescribed concentration of alcohol (PCA) (CC2022/7391), contrary to s 19(1) of the RTAD Act is 2 months’ imprisonment, reduced to 1 months and 21 days’ imprisonment in accordance with the approximately 15% discount on account of the plea of guilty. The sentence for this offence will commence on 25 November 2027 and expire on 14 January 2028.

358․ The appropriate sentence for driving whilst disqualified (CC2022/7393) contrary to s 32(1)(a) of the RTDL Act is to pay a fine of 3 penalty units with no time to pay.

359․ The appropriate penalty for not giving required particulars as a driver involved in a crash (CC2022/7392), contrary to r 287(1) of the Road Rules by contravening r 287(2)(a) is 3 penalty units with no time to pay.

Disqualification 360․ Concerning the offence of failing to stop motor vehicle for police (CC2022/7389), I note the automatic disqualification period of 12 months. Concerning the offence of aggravated dangerous driving (CC2022/7390) I note the automatic disqualification period of 12 months.

361․ Concerning the offence of driving whilst disqualified (CC2022/7393), I note the automatic disqualification period of 12 months.

239 Included in SCC 23 of 2023. 362․ Concerning the offence of driving a motor vehicle with a level 3 PCA (CC2022/7391), I order a disqualification period of 6 months.

363․ I note there was no submission made by the prosecution against concurrency concerning 240 the disqualification periods. Therefore, in this case I determined that the disqualification periods should be concurrent, considering that this would allow the offender to obtain a drivers license which is an important factor within the issue of rehabilitation.

364․ The disqualification periods will commence upon conviction of sentence on 24 July 2025: 241 see s 68 of the RTG Act.

Non parole period 365․ Overall, the sentence will result in an effective non-parole period of approximately 51.5% taking into account that the formal start date of the non-parole period cannot formally commence until 16 April 2024: s 64(2) Sentencing Act. The offender will therefore be eligible to apply for parole on 26 February 2026 (see graph of overall sentence at ‘Annexure B’).

Orders 366․ For the above reasons, the following orders are made: a) In relation to the matters of the breach of good behaviour orders with suspended sentences, I impose the following sentences: [Redacted]. b) In relation to the breach of good behaviour orders without suspended sentences, for [redacted]. c) For the offence of attempted robbery (CC2022/10336), contrary to s 309 of the Criminal Code by virtue of s 44, the offender is convicted and sentenced to 14 months and 7 days’ imprisonment. The sentence for this offence will commence on 16 April 2024 and expire on 22 June 2025. d) For the offence of riding a motor vehicle without consent (CC2022/2682), contrary to s 318(2) of the Criminal Code, the offender is convicted and sentenced to 4

240 Transcript, 18 July 2025, page 20. 241 Transcript, 18 July 2025, page 22, 23. months and 15 days’ imprisonment. The sentence for this offence will commence on 16 April 2024 and expire on 30 August 2024. e) For the offence of common assault (CC2022/2681), contrary to s 26 of the Crimes Act, the offender is convicted and sentenced to 6 months’ imprisonment. The sentence for this offence will commence on 16 April 2024 and expire on 15 October 2024. f) For the offence of aggravated burglary by joint commission (CC2023/959), contrary to s 312 of the Criminal Code by virtue of s 45A, the offender is convicted and sentenced to 39 months and 18 days’ imprisonment. The sentence for this offence will commence on 23 April 2025 and expire on 9 August 2028. g) For the offence of damage property by joint commission (SCCAN2023/378), contrary to s 403 of the Criminal Code by virtue of s 45A, the offender is convicted and sentenced to 8 months and 3 days’ imprisonment. The sentence for this offence will commence on 23 April 2025 and expire on 25 December 2025. h) For the offence of assault occasioning actual bodily harm by joint commission (CC2023/962), contrary to s 24(1) of the Crimes Act, the offender is convicted and sentenced to 14 months’ imprisonment. The sentence for this offence will commence on 23 April 2025 and expire on 22 June 2026. i) For the offence of aggravated dangerous driving (CC2022/7390), contrary to s 7(1) of the RTSM Act, the offender is convicted and sentenced to 11 months and 27 days’ imprisonment. The sentence for this offence will commence on 10 April 2028 and expire on 5 April 2029. j) For the offence of failing to stop motor vehicle for police (CC2022/7389), contrary to s 5C of the RTSM Act the offender is convicted and sentenced to 8 months and 15 days’ imprisonment. The sentence for this offence will commence on 25 November 2027 and expire on 8 August 2028. k) For the offence of driving a motor vehicle without consent (CC2022/10061), contrary to s 318(2) of the Criminal Code the offender is convicted and sentenced to 6 months and 24 days’ imprisonment. The sentence for this offence will commence on 25 November 2027 and expire on 17 June 2028. l) For the offence of damaging property by joint commission (CC2022/7386), contrary to s 403 of the Criminal Code by virtue of s 45A the offender is convicted and sentenced to 10 months and 5 days’ imprisonment. The sentence for this offence will commence on 25 November 2027 and expire on 29 September 2028. m) For the offence of driving a motor vehicle with a level 3 prescribed concentration of alcohol (PCA) (CC2022/7391), the offender is convicted and sentenced to 1 months and 21 days’ imprisonment. The sentence for this offence will commence on 25 November 2027 and expire on 14 January 2028. The offender is disqualified from driving for a period of 6 months from today, 24 July 2025. n) For the offence of driving whilst disqualified (CC2022/7393) contrary to s 32(1)(a) of the RTDL Act the offender is convicted and I order the offender to pay a fine of 3 penalty units with no time to pay. o) For the offence of not giving required particulars as a driver involved in a crash (CC2022/7392), contrary to r 287(1) of the Road Rules by contravening r 287(2)(a), offender is convicted and I order the offender to pay a fine of 3 penalty units with no time to pay. p) The total sentence I impose is for 6 years 4 months and 21 days’ imprisonment from 16 November 2022 to 5 April 2029. This sentence is subject to a non-parole period of 1 year, 10 months and 11 days that commences on 16 April 2024 as per s 64(2) of the Sentencing Act and the prohibition on non-parole periods thereto. Nevertheless, this results in a non-parole period overall of 51.4% taking into account that the formal start date of the non-parole period does not commence until 16 April 2024 in accordance with s 64(2) of the Sentencing Act. The offender will become eligible for parole on 26 February 2026.

Assistance of Counsel 367․ I wish to formally record in this judgment the following. Counsel for the prosecution Mr Dyason and counsel for the offender Mr Jackson were both of utmost assistance in their duty as counsel, to assist the Court. Counsel were both assiduous in their legal work in this sentencing matter that involved quite some complexity. That is a credit to the professionalism of both Mr Dyason and Mr Jackson.

I certify that the preceding three hundred and sixty-seven [367] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Justice Loukas- Karlsson Associate: Date: 24 July 2025 ANNEXURE A Case Objective Features Subjective Features Outcome DPP v CR (a Charges “The youth of the offender is Total sentence pf pseudonym) a compelling factor; the 6 years 1 month 1 x Counsel or procure aggravated robbery [2023] community has a clear 6 days ACTSC 293 4 x Dishonestly drive or ride motor vehicle without consent interest in an outcome that imprisonment promotes rehabilitation. On with a 3 x Burglary joint commission the other hand, the serious non parole period Taylor J 2 x Theft joint commission nature and scope of the of roughly 50% offending requires an 1 x Aggravated burglary joint commission outcome that properly takes 18 October 1 x Aggravated robbery joint commission account of the purposes of 2023 sentencing which includes punishment and Facts accountability.” The offender was sentenced for a spree of offences, committed with co-offenders when he was 18 years old. At the time of the offences the offender was subject to a suspended period of imprisonment and ICO as well as bail conditions.

Objective seriousness “Based on the circumstances known to this Court and applying the factors in Kelly, including the nature, circumstances and timing of the breaching conduct, as well as my view that the conduct demonstrates clearly the offender’s intention to ignore his obligation to be of good behaviour, the only appropriate outcome in relation to the breach of the SSO is the imposition of the sentence.”

Plea: 20% R v Minnis Charges 29 years old AOABH – 2 years [2014] 2 x Assault occasioning actual bodily harm Poor relationship with imprisonment ACTSC 268 1 x Aggravated burglary parents AOABH – 2.5 Used drugs since he was 16 years Murrell CJ Facts years old imprisonment Case Objective Features Subjective Features Outcome Offender was well known to both victims. On the day prior to the offences there was a Agg Burg – 5 When offence was falling out amongst the offender and the victim over a pair of shoes. On the night of the years committed he was 23 offence the offender and an unknown male entered the victim’s premises. The offender imprisonment essentially homeless and September struck the victim with a baseball bat multiple times causing a skull fracture and severe debts of $10,000 Total sentence of 2014 bruising. 6 years imprisonment – Objective seriousness First 2 years and “The aggravated burglary was objectively very serious. It was a violent home invasion. It 3 months to be was pre-planned. The offender was armed. The aggravating feature relied upon to sustain served in full-time the offence is that the offender was armed. However, in relation to objective seriousness imprisonment, the prosecution is entitled to rely upon the additional feature that the offence was before a period of committed in company….At the time of the offences, the offender was on conditional periodic detention liberty. In August 2013, he had received a 24-month good behaviour order in relation to and then a good the unlawful possession of stolen property.” behaviour order. Plea: N/A R v Andy Charges 38 years old at time of Agg burg – 28 [2022] 1 x Aggravated burglary by joint commission offending months ACTSC 54 1 x Property damage by joint commission Lengthy criminal history imprisonment 1 x Theft by joint commission On conditional liberty at time Property damage Murrell CJ of offending – 12 months Facts Profound childhood imprisonment The offenders broke the glass panel of the victim’s house and entered with a baseball bat disadvantage associated Theft – 1 month 10 each. The victim grabbed her one-year-old child and ran outside. The offenders damaged with intergenerational imprisonment September property inside the house and stole an Xbox console and glass bong. disadvantage and trauma 2.5 years 2021 and 23 Offenders father was an imprisonment March 2022 Objective seriousness aggressive and abusive fully suspended The aggravated burglary was a serious offence of its type. See [19] alcoholic on imposition of Property damage offence- The offender’s role was secondary and for the objective At 13 was sexually abused good behaviour seriousness of the theft, the items taken were of low monetary value and no apparent order for 2 years personal value, also it appears they have been recovered.

Plea: 15-20% Case Objective Features Subjective Features Outcome R v Lindley- Charges 45 years old 25 months Jones 1 x Aggravated burglary Unenviable criminal history imprisonment [2014] – many matters of Non parole period ACTSC 296 Facts dishonesty and violence of 14 months Murrell CJ The offender was at his residence and awoke in the middle of the day forming the opinion Deprived background – the victims son had stolen his shoulder bag containing Xanax tablets and money. He went mother was an alcoholic 23 to the house of the victim and demanded the return of the Xanax tablets and $500. The Suffered physical abuse as September offender bashed on the security screen and yelled threats to the victim. Upon smashing a child 2014 the kitchen window the offender entered, at this time the victim armed himself with a large History of substance abuse walking stick. The offender proceeded to arm himself with a knife from the kitchen and retreated once the victim held up his walking stick. The offender then fled the living room but remained in the laundry room with the door shut. The police arrived and arrested the offender who was still in the laundry room. Objective seriousness “The offence is of reasonably low objective seriousness when compared to the range of offences that fall within s 312 of the Criminal Code 2002. It is true that the offence occurred at residential premises when someone was at home and known to be at home by the offender. However, it was in the middle of the day and the offender was known to the complainant and the intended victim, his son. It could be characterised as a very unpleasant altercation between neighbours.” The decision by the offender was spontaneous in an attempt to have property he believed was stolen returned. “In my view it is an unusual case of aggravated burglary. It is difficult to assess its seriousness against other cases. It is of significant seriousness but, in all the circumstances, it is towards the lower end of objective seriousness.” Plea: 25%